Apprehended Violence Orders (AVOs) in NSW are made under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Before a court can make an AVO, certain legal requirements must be satisfied.
There are two main types of AVOs:
- Apprehended Domestic Violence Orders (ADVOs), which generally involve people who are or have been in a domestic relationship; and
- Apprehended Personal Violence Orders (APVOs), which generally involve people who are not in a domestic relationship.
Although the circumstances of each application are different, the court must apply the relevant statutory criteria before making an order.
When can a court make an ADVO?
Under section 16, the court must be satisfied, on the balance of probabilities, that the person seeking protection has reasonable grounds to fear, and in fact fears, that the person seeking protection has reasonable grounds to fear, and in fact fears, that the other person will:
- Commit a personal violence offence against them; or
- Intimidate or stalk them in a way that is sufficient to warrant an AVO being made; and
- The conduct is sufficient to justify making the order.
This is used when the people are in a domestic relationship, including current or former partners, family members, people living in the same household, or paid and unpaid carers.
When can a court make an APVO?
The test for an Apprehended Personal Violence Order is similar.
Under section 19, the court must be satisfied, on the balance of probabilities, that the person seeking protection has reasonable grounds to fear, and actually fears that the other person will:
- Commit a personal violence offence against them; or
- Engage in conduct that intimidates or stalks them; and
- The conduct is sufficient to justify making the order.
Used when there is no domestic relationship, and the people have never been in one. This typically applies to neighbours, co-workers, acquaintances, or strangers.
Is being rude or offensive enough for an AVO
The relevant conduct must go beyond merely rude, offensive or unpleasant behaviour and must support the required fear of future violence or other relevant conduct.
This means that an argument, disagreement or unpleasant interaction will not automatically justify an AVO. The court must consider the circumstances and determine whether the evidence establishes the requirements under the legislation.
What standard of proof applies to an AVO
AVO proceedings are determined according to the civil standard of proof, the balance of probabilities. This is different from a criminal prosecution, where the prosecution must prove the accused’s guilt beyond a reasonable doubt.
Importantly, this does not mean that an AVO will automatically be made simply because criminal charges cannot be proven.
The court must still be satisfied that the specific criteria for making an AVO under sections 16 or 19 have been established.
What does the court consider before making an AVO?
The court must consider the circumstances of the case, including the safety and protection of the person seeking the order.
Depending on the circumstances, this can include:
- The alleged conduct;
- Whether there is a risk of future violence, intimidation or stalking;
- The impact on children;
- The potential hardship caused by making or refusing the order;
- Accommodation arrangements; and
- Any other relevant circumstances.
The court will ultimately need to determine whether the legal requirements for an AVO have been satisfied.
Can I object to an AVO?
Yes. If you do not agree with an AVO being made, you may be able to object to the application and have the matter determined by the court.
In a contested matter, evidence may be given, and witnesses may be cross-examined. The court will then determine whether the statutory requirements for making the order have been established.
If an AVO has been applied for against you, it is important to understand the allegations and the potential conditions of the order before deciding how to respond.
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