Prior to the Court making an ADVO or APVO the Court must be satisfied:
- That on the balance of probabilities the person seeking protection (the protected person) has reasonable grounds to fear and in fact fears:
1.1. That the Defendant will commit a personal violence offence upon them, or
1.2. That the Defendant will undertake conduct which intimidates or involves stalking that person or a person with whom he or she has a domestic relationship.
- Such conduct in the opinion of the Court is sufficient to warrant the making of the order.
The Court has no power to make orders against the protected person (the person making the application) unless the Defendant files a cross-application naming that person as a Defendant in a second Application. If this is done these matters will normally be heard by the Court at the same time.
If a Defendant to an AVO is convicted of any associated violence, stalking or intimidation charge against the person seeking an AVO, the Court must make an AVO for the protection of that person.
A Court may also make an interim Order if the Court finds that it is "necessary or appropriate" to do so until a matter reaches a Final Hearing.
As an AVO is not a criminal matter it will not normally appear on any criminal history check. It is however a criminal offence to breach an Interim or Final AVO. If you breach an AVO you face a maximum fine of $5,500 or imprisonment for two years, or both. If you breach an AVO and that breach involved violence towards the protected person, the Court must firstly consider a sentence of imprisonment.
If you are successful in AVO proceedings, the Court may award a Costs Order against the other party for such costs that are just and reasonable.
If you are named as a Defendant in an AVO you will normally have the following options:
- Oppose the orders sought and the matter will be listed for a Hearing (a 'show cause hearing'); or
- Accept the Orders sought without making any admissions to the allegations contained within the application (often referred to as 'consenting without admissions'); or
- Negotiate 'undertakings' with the consent of the applicant whereby no formal AVO is made but you make certain promises to the Court about your future behaviour; or
- Make an application that your matter be referred to Mediation before the Community Justice Centre.
On 1 May 2012, a new practise note was issued by the Court to detail how AVO matters will now proceed before a Court. A copy of the practise note can be found by using the link below:
The major differences are that in contested AVO Hearings all witness’ evidence at a Hearing must now be given by written statements filed with the Court prior to the Hearing.
A standard AVO will take three appearances before the Court.
On the first mention date if the AVO is being contested the Applicant will be ordered to file with the Court copies of the Applicant’s own written statement, and any written statements of witnesses from whom the Applicant intends to call to give evidence at Hearing within two weeks
The Defendant is then ordered to file copies of the Defendant’s own written statement, and any written statements of witnesses from whom the Defendant intends to call to give evidence at Hearing normally two weeks after the Applicant is ordered to file their statements.
The matter is then listed for a second mention to check that all statements have been filed. The second mention is normally one week after the Defendant is ordered to file their statements.
Subject to the interests of justice, on the second mention:
- If the Applicant has failed to comply with these directions the application may be struck out, or the Court may order the filing of the outstanding statements.
- If the Defendant has failed to comply with these directions, the matter may proceed on the evidence filed by the Applicant alone on the mention day, or the Court may order the filing of the outstanding statements.
- If neither party has complied with these directions the application may be dismissed.
- The Applicant must attend otherwise the application may be dismissed.
- The Defendant must attend otherwise an Order may be made against him/her.
- If both parties have complied with these directions the matter will be listed for hearing.
If all matters have been complied with, the matter will then be listed for a contested Hearing.
If you are an Applicant or a Defendant in an AVO, you should immediately obtain legal advice about your rights and the best way to progress your matter before the Court.