Can you defend an AVO application?

When police are called to a domestic violence incident, according to the law in NSW, they must make an application for an AVO if an offence of domestic violence has been committed or if they believe that an offence is about to happen or likely to happen. In some cases, the parties involved in domestic violence may not wish to apply for the AVO, however once the police become involved the application must go ahead.

It is possible to defend an AVO. The person applying for the AVO needs to prove that they fear that the defendant will be violent towards them, harass them, intimidate them or stalk them. However, this subjective test must be considered along-side an objective test of whether that person’s fear is based on reasonable grounds. The Court must be convinced that another person in the same position as the AVO applicant would feel the same.

Before responding to an application for an AVO you should consider whether the applicant can prove there is a need for an AVO to be made.

When the application is filed in court a date will be set for when the parties will need to go to court. This first court date is called a ‘mention’. It is advisable to have a lawyer appear for you at the mention.

If an application for an AVO had been made against you, you may also have been charged with a criminal offence, see assault. On the date you attend court, the magistrate will want to know how you want to respond to the application. The magistrate may also want to know if the applicant still wants to go ahead with the application.

If the police applied for the AVO on behalf of the applicant, they will represent the protected person. At some courts a police officer may want to talk to you about what you want to do before the case. This may be a Domestic Violence Liaison Officer (DVLO). You should not discuss what happened with the police officer or DVLO as it might be used against you at a hearing. Only tell the police officer whether or not you agree to the AVO being made.

Depending on what you and the applicant want to do, the matter may be finalised on the day or it may be postponed (adjourned) to another day.

You may:

• ask for more time to get legal advice, and the case may be adjourned.
• agree with the AVO being made, without admitting any of the allegations, and a Final AVO will be made.
• not agree with the AVO being made, and the case will be given a hearing date. If the application is for an Apprehended Personal Violence Order it may be referred to a Community Justice Centre (CJC) for mediation. A temporary order (Interim AVO) may be made, or if an Interim AVO has already been made, it may be extended until the hearing date.
• give a formal promise (undertaking) to the court to stop the behaviour causing the protected person to fear you.
• not attend, and if there is evidence the application was served, an order may be made against you even though you’re not at court.
• not attend, and if there is no evidence the application was served, the matter may be adjourned to allow the application to be served on you.
• If a Final AVO is made, you may be able to appeal the decision to the District Court within 28 days.

If you have been issued with an AVO and need advice and/or representation in court call North Shore Criminal Law on (02) 9955 2298 or our 24 hour Emergency Service on 0400 44 64 24.