Apprehended Violence Orders, or as they are more commonly described, AVOs, are not only very common in today’s society, but there is also great awareness in the general public of them.
Each state in Australia has a type of restraining order which is comparable to AVOs in NSW.
However, despite this great awareness of their existence, there are also great misconceptions about them, so the purpose of today’s blog is to clear a few of those misconceptions up and provide you with a few basics about AVOs.
The person who needs protection from the order is referred to as the PINOP (Person In Need Of Protection) and the person the order seeks to restrict is called the defendant.
In NSW, the relevant Act of Parliament is called the Crimes (Domestic and Personal) Violence Act 2007.
Now as you will almost all know, AVOs have been around in NSW a lot longer than 2007. Prior to the new Act being introduced in 2007, AVOs fell under the jurisdiction of the Crimes Act 1900. The commonality and seriousness of AVOs and most specifically their breaches led authorities to deem it that a specific Act of Parliament was required to cover this important area of law.
An application may be made by either the PINOP themselves or the police on behalf of the PINOP. If there is an allegation of domestic violence, then the police will usually make the application on behalf of the PINOP.
The advantage of the police making the application on behalf of a PINOP is twofold. Firstly, it costs the PINOP nothing in legal fees, the police prosecutor will run the case for them. If the PINOP makes the application themselves, then they either have to run the case themselves (a situation most members of the general public would not be comfortable doing) or engage a private lawyer to run the matter for them and will have to pay for him/her to do so.
There are two types of AVOs, apprehended domestic violence orders and apprehended personal violence orders. The process is the same regarding both however, a domestic AVO is sought if the defendant is or was married, was the defacto, lived with, is or was closely related to, has or had an intimate relationship with the PINOP, or a few other less common categories.
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Apprehended personal violence orders cover all other persons such as neighbours, workmates, social acquaintances, etc.
An application is made to the Local Court and a summons issued. This summons, whether a domestic or personal application, is usually served on the defendant by the police.
The summons will include a brief outline of the basis for the application (ie, the behaviour of the defendant that has caused the PINOP to fear them), the restrictions that the PINOP is seeking on the defendant, the length of time for which the order is sought and the details of the time and place that the defendant has to attend court.
The summons may also include anyone in addition to the PINOP who the order is seeking to protect, such as other people or children living with the PINOP.
New laws just introduced now allow senior police officers to issue provisional AVOs themselves to protect the PINOP when there is evidence of potential violence. Previously the police had to apply to a judicial officer in an attempt to have a provisional AVO made.
This change places significant power in the hands of the police, allowing the police to become judge and jury, at least initially, in the AVO process.
In a future blog I will discuss the process once the parties get to court and the consequences of an order being made.
Craig Borg, Borg Lawyers: www.borglawyers.com.au; cborg@borglawyers.com.au; 1800800300.
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