The first step in the AVO process is to make an application. The person making an AVO application is called the ‘applicant’. The person to be protected by the AVO is known as the ‘protected person’.
A protected person can seek an AVO in two ways:
- By going to their local police station and asking the police to make an application. This is known as a ‘police application’ and the police officer is the applicant; or
- By going to their closest Local Court and making an application through the registrar. This is known as a ‘private application’ and the protected person is the applicant. Only a person 16 years or over can make a private application.
Comparing police and private applications
There are some important differences between private and police applications.
|Police applications||Private applications|
|Police officer is the applicant||Protected person is the applicant|
|Police have a duty to apply for an ADVO in certain circumstances||Registrar must accept the application for an ADVO|
|Often police will not initiate APVO applications||Registrar may refuse to issue an APVO application|
|Only police can make urgent provisional AVOs||Individual cannot seek a provisional order through the court although they can request a magistrate make an ex parte Interim Order at the time of making the application|
|Only police can apply for an AVO on behalf of a person aged under 16 years||A young person aged under 16 years cannot make a private application|
|Police prosecutor appears in court on behalf of protected person||Applicant has to represent themselves in court or find a solicitor (help available for women from Women’s Domestic Violence Court Advocacy Service (WDVCAS)|
When do police make AVO applications?
A police officer must apply for an AVO if they believe a domestic violence offence has recently been committed, or is being committed, or is likely to be committed. A domestic violence offence is defined in the Act as being a personal violence offence committed against someone with whom the defendant has a domestic relationship. If the defendant has been charged with a domestic violence offence, then the police have a duty to apply for an AVO for the person’s protection. If police decide not to apply for an AVO in these circumstances, they should record their reasons in writing.
In other cases, if police are satisfied the person requires protection they have discretion to make an AVO application even if they are not required to do so by the legislation.
If a person does not want the police to make an application, the police may still do so if they reasonably believe the person has been a victim of violence or there is a threat of violence or if the person has an intellectual disability and does not have a guardian.
On the spot AVOs
If a person needs urgent protection, police can make an urgent provisional AVO (‘on the spot AVOs’) to provide protection until the first court date. A provisional AVO is a temporary order and is in force until the application is dealt with or an interim or final order is made. Like all AVOs, the order can only be enforced after it is given to (‘served on’) the defendant by police.
Provisional orders can be granted by police officers of the rank of Sergeant or above. They will determine police applications based on the reasonableness of the applicant officer’s belief that an immediate order is necessary to protect a person or prevent substantial property damage. This power does not extend to the making of provisional APVOs or AVOs naming police officers as defendants or protected persons.
The police have powers to detain a defendant for the purpose of making and serving a provisional order. Where police lack sufficient evidence to make an arrest, police can detain a person or control their movements through a range of specified directions such as remaining at the scene or going to the police station in the company of a police officer. There are some associated search powers related to transporting a defendant in a police vehicle. The powers are intended to ensure the safety of the protected person, including where the victim is reluctant to cooperate with police.
AVOs resulting from domestic violence offences
If a person is charged with a domestic violence offence (for example, assault, malicious damage, sexual assault, stalking and intimidation committed by someone with whom the victim was in a domestic relationship), then the court must make an interim AVO for the person against whom the offence was allegedly committed, unless the court is satisfied that an AVO is not required (Crimes (Domestic and Personal Violence Act 2007 section 40).
If a person pleads guilty or is found guilty of a domestic violence offence, the court must make an AVO for the person against whom the offence was committed unless the court is satisfied that an AVO is not required (section 39). An example of this may be if there is an existing AVO.
Making private applications
If police will not apply for an AVO, or a person prefers not to apply through the police, they can make their own application through the registrar at the Local Court. A person can choose to make a private AVO application. There is no legal requirement to go through the police first.
What information is required?
The registrar will want the applicant to tell them about the incident or behaviour that has made them fearful and relevant information including an address for service on the defendant (usually a home address) and what orders the applicant is seeking. In preparing the application, the registrar will usually seek the following information:
- the nature of the relationship with the other person (for example, married, de facto, relative)
- length of relationship
- details of recent incident or incidents that have caused fears for their safety, for example, assaults, threats, phone calls, text messages, online harassment
- description of any previous violence or harassment or threats by the defendant
- details of any reports to the police
- details of treatment by medical practitioners
- previous AVOs
- previous charges/convictions for domestic violence offence(s)
- whether they have children together or if there are children who live with the applicant
- whether there has been violence or threats toward the children
- whether there are family law orders or arrangements for the children to spend time with the defendant
- whether there are proceedings currently before the family law courts.
This information will be typed up and is called ‘Grounds for the Application’.
Conditions in an AVO application
Applications include a list of the orders that can be ‘tailor-made’ for the protection required by an applicant. For example, one person might want to stop all contact with the defendant, while another might want to continue living with the defendant provided the defendant agrees to stay away for 12 hours after drinking alcohol.
Three orders are automatically included in all AVOs and are referred to as ‘mandatory orders’. The heading is ‘Orders about behaviour’ and these prohibit the defendant from:
- Assaulting or threatening the protected person or anyone who has a domestic relationship with them.
- Stalking, harassing or intimidating the protected person or anyone who has a domestic relationship with them.
- Intentionally or recklessly destroying or damaging any property belonging to or in the possession of the protected person or anyone who has a domestic relationship with them.
In addition to the mandatory orders, there are 10 additional standard orders. Not all the additional orders need to be in an AVO. Only the orders necessary for the person’s protection should be included in an application. Orders fall into five categories regarding:
- contact restricting the defendant from approaching, contacting or telephoning the protected person(s), going to a school or childcare place, being in the company of the protected person while drinking or taking drugs or trying to find the protected person
- family law and parenting
- where you cannot go — restricting the defendant from residing, entering, or going within a specified distance of the protected person’s home or work
- other matters that appear necessary or desirable to ensure the safety and protection of a person or child.
An AVO may list additional protected persons, as well as the applicant or person the police are making the application on behalf of.
A court is not restricted to only making the mandatory (standard) orders. It can impose whatever restrictions or prohibitions it thinks are necessary in the circumstances for the safety and protection of the protected person and any affected children and the protected person’s property.
When the court makes an AVO it can make an additional order for personal property to be collected from one or the other party’s premises at a specified time and in the company of a police officer or other person if need be. This is called an ‘Ancillary Property Order’.
Can a protected person’s address be listed on the AVO?
The court must not put the protected person’s home address or the address where they intend to live on an AVO unless the court is satisfied that:
- the protected person is 16 years of age or over and consents to the address being stated in the order
- the defendant knows the address
- it is necessary to state the address to achieve compliance with the order and the personal safety of the protected person(s) would not be seriously threatened, or damage would not be likely to be caused to any of the property of the protected person by stating the address.
Does a protected person need a lawyer?
In a police application, the Police Prosecutor will represent the protected person at court. This means that the protected person does not need their own lawyer.
In a private application, the protected person will need to represent themselves or find a solicitor. The Women’s Domestic Violence Court Advocacy Service (WDVCAS) may be able to arrange a lawyer free of charge for women victims of domestic violence in AVO mentions. A woman should contact the WDVCAS at her Local Court prior to the court date to confirm that a solicitor will be at court on the day to represent her free of charge.
Not all local courts will have a funded WDVCAS, but they may have local women’s organisations or other community services to assist women by providing free legal information or other services. Women’s Legal Service NSW can provide legal advice and the relevant local court can be contacted to ask about support options.
Is legal aid available for AVOs?
Legal aid may be available for male or female applicants in ADVO matters provided the person satisfies a means test based on their income and assets. Flatmates are excluded from the definition of ‘domestic relationship’ for the purpose of a grant of legal aid.
ADVO defendants who are in fact the victim of domestic violence by the ‘protected person’ may be eligible for a grant of legal aid for an AVO hearing and associated preparation provided he or she meets the means test. For all other AVO defendants, legal aid is not available unless the defendant can show exceptional circumstances. The Legal Aid NSW office should be contacted through LawAccess NSW for confirmation of the current legal aid policy (which changes from time to time) and application form.
Women’s Legal Service NSW can also help with information on the availability of legal representation and can refer women to private solicitors who may be able to apply for legal aid on their behalf. It is advisable to apply for legal aid as soon as possible and before the first court date.
The Domestic Violence Hot Topic is intended as an introductory guide only and should not be interpreted as legal advice.