An AVO application contains a notice to the defendant to come to court on a particular date and time. This is called a ‘listing date’.
Once the application for an AVO is made, it must be delivered to the defendant personally by a police officer. This is known as ‘service’. Once a police officer has served the application, they fill out a statement of service and send it to the Local Court so that the court knows the defendant is aware of the application.
Sometimes it is difficult to serve an application on a defendant, and police may attempt to serve the defendant on numerous occasions without success. In these cases, the court can order that the application be served in some other way, for example, by registered mail to their address or on the defendant’s solicitor or a specified relative. This is called ‘substituted service’. The magistrate will only make an order for substituted service if satisfied that it is not reasonably practicable to serve the defendant personally.
The first court date
After the application has been made, it is usually one to three weeks before the matter is listed at the Local Court (depending upon how often the Local Court is in session, and how busy its courts are). This first court date is sometimes called ‘the first return date’. The first return date is a ‘mention’ – that is, a short matter listed before a magistrate. Sometimes there could be 30 to 60 other matters in the same list, depending on the court. At this first mention, the magistrate will want to know what each party wants to do about the AVO.
The protected person should attend court on this date, even if it is a police application so they can let the police prosecutor know they would like to proceed with the application and if any changes to the orders are required.
On the first court date, one of the following scenarios might occur:
The defendant is not present at court and has not been served with the application
The AVO application will be adjourned (postponed) usually for two to four weeks to allow time for the police to serve the application on the defendant. If the protected person has fears for their safety until the next court date, the magistrate may make an interim (short-term) AVO until the next court date. The magistrate will look at the grounds of the application and may ask for further information. The magistrate will only make an interim AVO if it is necessary or appropriate to do so. As the interim AVO is made in the defendant’s absence (an ex parte interim order), it will not be enforceable until it is served on the defendant.
The defendant has been served with the application but has not come to court
The defendant may have contacted the court if, for example, they are ill and have a medical certificate. Depending upon the excuse for non-attendance, the magistrate may decide to adjourn the AVO application to another date.
If the defendant has been served, and has no reasonable excuse for the absence, the magistrate can make a final order (as opposed to an interim order) in the defendant’s absence (called an ex parte order). An ex parte order is not enforceable until it is served on the defendant.
Usually a final AVO is made for 12 months or two years, but it can be made for whatever period of time the magistrate thinks necessary. If no expiry is specified on the AVO, the default period is 12 months. Changes to the Crimes (Domestic and Personal Violence) Act are expected to come into force in 2019 that will increase the default period to two years.
The defendant has been served with the application and is at court
If the defendant has come to court, there are a range of possible outcomes:
Seeks an adjournment for legal advice
If the defendant comes to court but has not had time to organise legal representation or seek legal advice, they can ask the court to adjourn the matter. A magistrate will normally allow a short adjournment (usually two weeks) and will then consider making an interim order for the protected person until the matter is back in court.
Consents to the AVO
The defendant can consent to the order without admitting to any of the allegations made in the application. The magistrate will then usually make a final AVO by consent and ‘without admissions’.
Consents to undertakings
If the defendant does not consent to an AVO being made against them they may consent to an ‘undertaking’ if the protected person agrees to withdraw the application. An ‘undertaking’ is a promise to the court. Unlike an AVO, it is not a criminal offence to breach an undertaking. However, breaching an undertaking may give grounds for a further AVO application against the defendant. A protected person should seek legal advice before agreeing to an undertaking. It is unusual for undertakings to be made in police applications.
Does not consent to the AVO
If the defendant does not agree to (contests) the AVO being made, the magistrate will adjourn the case for further mention on another day (usually in one month’s time) and follow the directions in the Local Court Practice Note 2 of 2012 and make an order for exchange of statements. The magistrate will consider making an interim order for the protected person until the final hearing.
The protected person may want to withdraw the AVO
Sometimes the protected person may not want to proceed with the AVO application. In a private application, the applicant may seek the magistrate’s leave (permission) to withdraw the application. The magistrate will want to know why the protected person wants to withdraw the application – do they still have fears for their safety? Are they being pressured to withdraw the application by the defendant? If the magistrate is satisfied that the protected person is not being pressured to withdraw the application, and there are no related domestic violence offences, then the magistrate will usually allow the application to be withdrawn and will dismiss the matter.
In a police application, a decision to withdraw the AVO application will depend on the police. If there is a related charge matter for a domestic violence offence, or there are children listed on the AVO, the police are likely to refuse to withdraw the application. However, if the protected person has no fears for their future safety — for example, if the defendant has moved overseas or interstate and is unlikely to make contact again in the future — then even if the police continue with the application, the court can refuse to make the order on the basis that the person in need of protection is not fearful.
Preparing for a hearing
The Local Court Practice Note 2 of 2012: Domestic and Personal Violence Proceedings provides directions about how an AVO case is to be managed and sets out the steps the parties are expected to take to prepare a case for hearing.
The court will make a Directions Order about the exchange of evidence to be relied upon at the hearing. The Practice Note requires the applicant to file all witness statements in support of his or her application at the court by a certain date (usually two weeks after the mention). In a police application, the applicant police officer will arrange to prepare witness statements and a brief of evidence to be served on the defendant. The defendant is then required to file a statement in reply. Statements must be signed and dated to certify that the statement is true and correct and should only be about relevant issues for seeking or defending the application. As a statement can be tendered as a witness’s evidence in an AVO hearing, it is important to seek legal advice before providing a statement.
Although there are some protections to guard against defendants making admissions of guilt in a statement, it is advisable for defendants to seek legal advice if there is doubt.
Exchanging statements can help clarify the issues in dispute, weed out frivolous and vexatious applications, and avoid a ‘trial by ambush’. A statement should include all relevant information. It may be tendered at an AVO hearing as a witness’s entire evidence. If a party wants to add any more information before the hearing it will need to ask for the court’s permission. Amendments can be made in statement form or, with permission of the court, by giving oral evidence at court. While the witness statements should refer to all relevant supporting evidence such as photos, it is not necessary (or practical) to annex all potential supporting items to the statement. However including relevant photos or Facebook screenshots or lists of harassing text messages can be useful for applicants and may save them from having to amend the application before the court date.
Witness statements may help convince a defendant to consent to an AVO before a hearing. However, even if there is a statement, a witness may need to be cross-examined (asked questions by the other party to challenge their version of events) on the information contained in it.
At a mention following an exchange of statements the magistrate or registrar will check to see if the Directions Order has been complied with. If the orders are not complied with, the Practice Note provides that the application for an AVO may be struck out. However, the magistrate may adjourn for another mention if satisfied there is a good reason for non-compliance. Non-compliance with an order for exchange of statements could result in a costs order.
If the parties have complied with the exchange of statements then the matter may be listed for a hearing date. In some courts this may mean waiting up to three months. An interim AVO may be made or extended (continued) until the hearing date.
One way of obtaining documents that belong to other individuals or services so they can be used in court proceedings is to issue a subpoena. A subpoena is a court order that requires a person to produce specified documents to the court, or which orders a person to attend court to give oral evidence (tell their version of events to the court).
In a police application, the police will issue the subpoenas. In a private application the applicant or their solicitor will prepare subpoenas to be issued by the court. There are costs associated with issuing and serving subpoenas and there are also costs payable to cover a person’s or organisation’s reasonable expenses in complying with the subpoena. These costs are the responsibility of the person who issues the subpoena.
An AVO hearing is sometimes called a ‘show cause’ hearing. The protected person must show why, on the balance of probabilities (that is, more likely than not), they fear and have reasonable grounds to fear future domestic violence offences occurring, or future harassment, intimidation, or stalking.
If the protected person is under 16 years of age or has an intellectual disability it is not necessary to prove that they are actually afraid of future domestic violence. An AVO can also be made without proof of the protected person’s fear if the magistrate is of the opinion that:
- the defendant has committed a previous personal violence offence against the protected person
- there is a reasonable likelihood that the defendant will commit a personal violence offence against the protected person; and
- the making of an order is necessary in the circumstances to protect the person from further violence.
If a magistrate is satisfied that there are reasonable grounds to fear, but the person to be protected says they don’t actually have fears, the magistrate may still make an AVO but only with the mandatory orders about behaviour.
At the hearing, the magistrate will listen to the protected person’s evidence of why they have fears. The protected person may then be cross-examined (asked questions by) the defendant’s solicitor or by the defendant, if they are representing themselves. The magistrate will also hear the defendant’s version of events and then the police prosecutor, or the protected person or their solicitor if it is a private AVO application, can cross-examine the defendant.
In making a decision, the magistrate will consider all the evidence. Evidence can include the application for the AVO, statements, verbal accounts of incidents given by witnesses, and documents or things such as phone records, medical reports, emails and text messages or letters.
If a person’s main language is not English, it is important to consider using an interpreter in AVO proceedings. Court proceedings can be stressful and confusing and sometimes it can be useful to use an interpreter even if a person understands and speaks English as a second language in their daily life.
Most courts will allow an accredited interpreter to assist if it is required and interpreters in AVO matters are made available by the court free of charge. A female interpreter can be requested although availability cannot be assured. Auslan (Australian Sign Language) interpreters can also be used for people with a hearing or speech impairment. Family members or friends cannot be used as interpreters in court. At the application stage, it may be appropriate to use the Translating and Interpreting Service which provides qualified interpreters free of charge.
The Domestic Violence Hot Topic is intended as an introductory guide only and should not be interpreted as legal advice.