Defending an AVO

Deciding whether to defend the AVO

The consequences of an AVO can be significant and, for that reason, we at Bainbridge Legal caution against a defendant consenting to the making of the order without full consideration of the negative impact the AVO may have. These potentially disastrous impacts include that:

Defendants can be prevented from residing in, or restricted in approaching, their own home and spending time or communicating with their loved ones (including their children in some cases).

Defendants are required to dispose of any firearms in their possession, will have their firearms licence revoked and will not be entitled to apply for a new licence for a period of 10 years.

A security licence may also be cancelled, or an application for a security licence rejected, if an AVO is made against the defendant and if the Commissioner of Police believes the defendant is not a ‘fit and proper person’.

If a defendant is applying for a job that involves children and there is in place an AVO which protects a child, the defendant's record will be considered by the employer and he or she may be considered not eligible for that employment or volunteer work.

A defendant subject to an AVO is disqualified from serving on a jury.

If the police believe that a person has breached an AVO, they can arrest and detain the person without a warrant. The penalty for a defendant breaching an AVO is up to 2 years imprisonment, a fine of $5,500, or both. If the breach involves violence by a defendant who is 18 years or over, the defendant must be sentenced to a term of imprisonment (unless the court orders otherwise).

Grounds required to be established for an avo

The three prong test

The court may make an AVO where the complainant (usually referred to by police as the "person in need of protection" and sometimes abbreviated to PINOP), has reasonable grounds to fear and in fact fears:

(a) the commission by the other person of a personal violence offence against the person, or

(b) the engagement of the other person in conduct amounting to harassment or molestation of the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order, or

(c) the engagement of the other person in conduct in which the other person intimidates the person (or a person with whom the person has a domestic relationship), or stalks the person,

being conduct that, in the opinion of the court, is sufficient to warrant the making of the order. The standard of proof in AVO matters is not beyond reasonable doubt as it is in criminal proceedings. The standard of proof that applies is the lower 'civil standard' - on the balance of probabilities.

Deciding whether to consent or defend

For all of the reasons mentioned, it is wise to consider defending any AVO proceedings that are commenced against you. While you have the legal right to represent yourself in court, it will usually be in your interests to retain qualified legal representation to help protect your interests and give you the greatest chances of success.

If you do not have the financial capacity to pay for such representation, you should at least consider obtaining advice on how to run your case as an unrepresented litigant.

court proceedings

Going to court - the mention

The first court date relating to an application for an AVO involves what is known as a "mention". A mention is a brief court appearance by the parties where a Magistrate or Registrar decides how the application is to proceed.

In most cases the complainant will be represented by a police prosecutor. If the complainant has made the application through the Local Court themselves (ie. the application was not made by the police on their behalf), they may be represented by a lawyer or appear as a self-represented litigant. The complainant is able to seek leave from the court to withdraw the AVO during the mention, although there may be cost implications for the complainant if the AVO is 'dismissed' by the court rather than simply withdrawn.

The Magistrate or Registrar will ask you how you wish to respond to the application. You have several options available including seeking an adjournment (perhaps to seek legal advice) or indicating to the court that you wish to defend the matter. It is unwise to simply consent to the AVO without first receiving legal advice.

If you consent to the AVO, then the matter will likely be resolved on the day of the first mention. If you seek to defend the application, the Magistrate or Registrar will set the matter down for hearing on a later day. You should indicate to the court any periods that you will be unavailable to attend for a hearing. The hearing date will usually be set down for a day between several weeks and several months after the mention, depending on the case load of the court.

You may also be asked to answer some practical questions about your intentions at the hearing such as how many witnesses you intend to call, whether any of those witnesses are children, and whether the services of an interpreter may be required. These questions enable the court to determine the length of time your hearing is likely to take and what support services may be appropriate.

The Magistrate or Registrar may make some orders about the evidence in the case, such as dates for filing and serving witness statements, affidavits or agreed facts. If you are defending a criminal charge in addition to the AVO application, the court may give the police instructions on when the police must provide the brief of evidence to you.

Going to court - the hearing

On the day of the hearing, the complainant will present their case first. You will then be given the opportunity to present yours. Both parties are entitled to call witnesses to give evidence, and both parties are entitled to cross-examine the witnesses of the other party.

You should prepare for your hearing by considering the type and range of evidence that may be led against you. Consider whether you intend to give evidence yourself and what evidence you intend to give. Make notes of your case theory/outline and prepare your questions for the witnesses in advance.

The decision before the court on whether to make a final AVO depends on whether the Magistrate is satisfied on the balance of probabilities that the complainant has reasonable grounds to fear and in fact fears:

the commission by you of a personal violence offence against the complainant, or the engagement of conduct by you amounting to harassment or molestation of the complainant, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order, or the engagement of conduct by you which intimidates the complainant (or a person with whom the complainant has a domestic relationship), or stalks the complainant.

The court must be satisfied that the complainant is actually fearful of your behaviour (there are exceptions to to this rule where mental capacity is in issue). The court must further be satisfied that the complainant's fear is objectively reasonable. The reasonableness or otherwise of the fear will depend on the circumstances of the case and the parties involved.

If you are successful in defending the AVO, the court may form a view that the original complaint was frivolous or vexatious. In these circumstances you may be entitled to have any legal expenses incurred in defending the AVO reimbursed by the complainant (if so ordered by the court).

If the court elects to impose a final AVO, the orders will remain in force for six months unless another period is specified by the court. In practice the court will typically specify a period between 12 months and two years. There is, however, no restriction on the length of time for which an order may be made and the court will occasionally impose an order for longer periods such as five years.

In the event of an adverse final order being made, you are entitled to lodge an appeal with the Criminal Division of the District Court. Strict time limits apply to the filing of appeals and legal advice should be sought at the earliest possible opportunity.