After a final AVO is made, if the defendant is present in the court the AVO is enforceable immediately. If the defendant is not at court, then the ex parte final AVO is not enforceable until it is served. If there is an interim order in place at the time an ex parte final order is made, it will continue until the final order is served.
Only professional costs can be awarded in AVO proceedings. These are the costs incurred in coming to court and include costs such as solicitor fees and witness expenses. Costs are not ordered against the applicant in a private application for an ADVO unless the court is satisfied that the application was ‘frivolous or vexatious’. Frivolous means lacking in substance or with no reasonable prospects of success. Vexatious means to cause annoyance.
If an AVO application is made by a police officer, a court will not award costs against a police officer unless satisfied that the police officer made the application knowing it contained matter that was false or misleading (Crimes (Domestic and Personal Violence) Act 2007, section 99A(2)).
If the defendant has a gun licence or a permit, it is suspended when an interim AVO is made. Once a final order is made, the gun licence is automatically cancelled and an application for another licence cannot be made for 10 years, unless the AVO is revoked (cancelled) (Firearms Act 1996 (NSW), section 11 and Weapons Prohibition Act 1998 (NSW), sections 17 and 18). Police and military officers claim that these provisions restricting firearms do not apply to them, as they do not hold licences or permits for firearms. This has caused concern for protected persons when police or military officers are defendants in AVO and domestic violence offence proceedings. These concerns have been raised as an issue for law reform by legal services and support services for women experiencing domestic violence.
Consequences of breaching an AVO
A defendant is not guilty of a criminal offence by having an AVO made against them and the AVO is also not listed on the defendant’s criminal record. However, knowingly breaching an AVO is a criminal offence, punishable by a maximum penalty of two years in prison and/or a fine of $5500. If a breach involves physical violence there is a presumption the defendant will go to jail if found guilty.
If the defendant breaches the AVO, a report of the breach should be made to police as soon as possible. The police should then investigate the alleged breach. The victim should also make their own notes of the breach, for example in a diary, together with the name and station of the police officer they reported the breach to, and the police event number for the incident (also called the ‘E number’). Women’s Legal Service NSW has a publication called the AVO Breach Diary which can be used for recording breaches of AVOs.
If police decide that there is enough evidence to create a reasonable suspicion that the defendant knowingly breached the AVO they have an obligation to charge the defendant. NSW Police have a pro-investigation policy for all domestic violence offences. There is no such thing as a ‘minor’ or ‘technical’ breach of AVO. Depending on the circumstances, police can issue the defendant with a court attendance notice or make an arrest.
If police charge the defendant with a breach, the defendant will need to attend court and may plead guilty or not guilty. It is unlikely that the maximum sentence will be given unless the breach is very serious, or if there is a history of domestic violence offences. Other penalties may include a fine or a good behaviour bond.
If a person pleads guilty or is found guilty of a domestic violence offence, the court is to direct that it be recorded on the person’s criminal record as a domestic violence offence. Multiple offences of a similar nature are relevant to issues of bail and sentencing on future offences (Crimes (Domestic and Personal Violence) Act 2007, section 12).
Working with children check
In NSW there is a requirement that all persons volunteering or employed in child related work be subject to a satisfactory Working With Children Check. This involves a search of national criminal histories from CrimTrac. The check previously required checking for ‘relevant AVOs’. However, changes in 2012 to the Child Protection (Working with Children) Act 2012 (NSW) mean that an AVO of itself is not ‘a disqualifying offence’ nor ‘a trigger offence requiring a risk assessment to be undertaken’. However, an AVO may form part of a risk assessment if a ‘trigger offence’ has been identified in the check therefore requiring further risk assessment to be undertaken.
Can a final AVO be changed?
After a final AVO has been made, an applicant, protected person or defendant may apply to vary or revoke (cancel) the AVO. If any of the protected persons on the AVO are under 16, only the police can apply to vary the order, unless the court grants leave for an interested party to apply. There are rules about when leave will be given where there is a child under 16 years of age and legal advice should be sought (Crimes (Domestic and Personal Violence) Act 2007, section 72B).
An AVO can be varied to impose greater or lesser restrictions on the defendant, including adding, deleting or amending orders, revoking or extending the duration of the order. A private application for variation can be made in the Local Court through the registrar. It needs to set out the proposed variations and the reasons for them. If there are multiple protected persons, special notification provisions apply.
Police must serve the application for variation or revocation on the other person named in the AVO. No variation can be made until service has taken place. A magistrate will only allow a variation or revocation of the AVO if it is proper in all the circumstances to do so. A magistrate can decline to hear an application to vary or revoke an order if they are satisfied there has been no change in circumstances since the order was made or if the application is in the nature of an appeal against the order. An example of when a protected person may want to vary an AVO is if they want to live with the defendant again but still have the protection of the mandatory orders.
Appeals, annulments and reviews
A defendant has a right of appeal to the District Court against having an AVO made against them (Crimes (Domestic and Personal Violence) Act, section 84 and Crimes (Appeal and Review) Act 2001 (NSW), Part 3). The application must be made within 28 days (or within three months with leave (permission) of the District Court). There is a legal presumption that an AVO will continue for the person’s protection until an appeal has been decided.
If an AVO was made against a defendant in their absence, the defendant can apply to the Local Court to annul the order. The defendant must show the Local Court that their non-attendance was due either to:
- not being aware of the proceedings until after they were completed; or
- being hindered by accident, illness or misadventure or other cause.
In the alternative, they can argue it is in the interests of justice to grant the annulment application. The application for annulment must be made within two years of the making of the AVO.
If a magistrate dismisses an AVO application, the applicant or the protected person may apply to the District Court for a re-hearing of the matter within 28 days. Any re-hearing in the District Court is based on what was said in the Local Court (the transcript) rather than new evidence being called from witnesses, unless the District Court gives permission to present fresh evidence.
The Domestic Violence Hot Topic is intended as an introductory guide only and should not be interpreted as legal advice.