Apprehended Violence Order (AVO) in Australia

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People who experience a form of domestic abuse or another can apply to the court to get an Apprehended Violence Order (AVO) from the court. It does not matter where the threat of future violence comes from, a court will impose the necessary restrictions be it an AVO (Apprehended Violence Order) or an ADVO (Apprehended Domestic Violence Order) depending on individual State or Territory's legislation.

While the legislation for orders eschewing threats to a person is common and rigid in Australia, the different States and Territories have varying adjustments and peculiarities in their laws. However this hardly tells of disparity in the law, and just shows how each State or Territory adopts the circumstances that fit.

Who can apply for an AVO in Australia?

The Apprehended Violence Protection Order is available to all those who fear a possible and proven act of violence from another person. The violent action may even be "feared" by either a close or distant relation. However no matter the State, distance, degree of fear of action, you can apply if the person is;

• Someone in an intimate personal relationship with you; includes your husband, wife, boyfriend, partner, and people in same-sex relationships.
• Family relationship; sibling or parents
• An informal care relationship; involving -people dependent on another person for healthcare, dressing, cooking or living
• For Aboriginals, Torres Strait islanders; it could be a member of a kin, tribe, extended family or other related, member of your kinship.

What constitutes Domestic or Family Violence?

Violence or acts of the same is a serious criminal offence in Australia, especially where it leads to serious bodily harm or life-threatening results. However, an offence of domestic violence is one of the aggravating circumstances of a violent act.

Domestic violence includes all violent actions or assaults or threats which become aggravating by the relationship of the offender and the sufferer. Most times it does not have to be an offence influenced by geographical proximity.

Domestic violence has to do more about the relationship and the close family influence that may aggravate the act.

Under Section 5 of the Crimes (Domestic and Personal Violence) Act 2007, it cites some examples of Domestic violent actions as;

• Sexual abuse
• Physical abuse
• Psychological/emotional abuse
• Economic abuse
• Stalking
• Intimidation or harassment
• Social abuse; including controls, intimidation, isolation, ostracism, and so on
• Spiritual abuse; controlling and enforcing a person to a belief out of their will

Who makes an AVO?

If the Court deems a condition necessary to impose an AVO on a "guilty" party, it will enforce one with strict punishments in the case of a breach. However, for certain reasons, the Police may enforce an AVO order on all offenders.

All orders and legal information that guides the issuance of an AVO against a person is under the Crimes (Domestic and Personal Violence) Act 2007.

Where the Police see that the life or property of the defendant is in danger it will order an immediate AVO against the offender. The AVO orders come with conditions that last for a period to protect them from further abuses.

When does the Court Impose an Apprehended Violence Order?

Under s16 and s19 of the Crimes Act of Australia, the court will order an AVO against a person. However, the court must consider certain probabilities and conditions before they issue any of these conditions. The considerations stated in s17 and s20 of the Act, allows the court to make better decisions based on the relationship (or not) between the parties.

The court will impose an AVO order to a party they find guilty if;

• The court rules that the person has reasonable grounds to fear, or fears;
• The commission by the other person of a personal violence offence against the person
• The engagement of the other person in conduct in which the other person;
• Intimidates the person
• Stalks the person
• The person reported engages in an act the court deems should necessitate an AVO.

What tests does the court consider before issuing an AVO?

The court may consider some findings, including any actions that warranted the fear. However, it is not obligated to base its judgment on any of these tests. The court may overlook some of the "tests" or evidence simply because they do not constitute any useful evidence for a case of violence.

One peculiar example is the Brady vs. Schatzel 1911 Q.S.R p f206;

Here even though the accused pointed a firearm at the person, the defendant indicated that he was not scared. However, the court ruled against the accused

In court, the individual's "fear" may not count for much compared to the apprehension of the violent act.

Is it a criminal offence to get an AVO??

Getting an AVO does not translate to having a criminal offence in your Nationally Coordinated Criminal History Check. It just means the court orders you against specific actions and places. Also, these orders may bring restrictions to your rights.

Some of them include;

• Under the ss11 (5) (c) of the Firearms license; the court may prevent you from owning a firearms license if you got an AVO within the last 10 years
• For a proven offence of stalking or intimidation, you will be unable to get a security license. It is contained in the r18 Security Industry Regulations Act of 2007.

How to obtain an AVO in Australia

No matter where you are in Australia, getting an AVO should not be difficult. The State or Territory makes it easier to get an AVO in the case of immediate danger or harm to the person.

If anyone is in danger the first step to get an AVO is to call 000 immediately. When the operator responds to the call, you must state your situation or problems and tell them if it is a case of emergency. The operator will then ask you for;

• Phone number
• The exact address of the emergency
• For non-English speakers, there will be a translator available

Step 2; Applying for an intervention order

The current restriction on social interaction alters the process of applying for an AVO. However, you can still maintain some manual application processes.

When applying for an AVO, you should ring the Police in emergency cases. They can not only apply for an AVO on your behalf, but they may issue a temporary or urgent AVO to protect you until your application is heard.

You can either come to the court or apply online to lodge an AVO via the e-forms. However, it depends on if these facilities are available in the State.

However, depending on the State or Territory, you should apply through the Magistrate or the Local courts. Engaging the services of an experienced lawyer can also help the case of applying for an AVO.

What happens after applying for an AVO?

If your AVO application is complete and submitted, you will be given a date for a hearing in court

The Court or the Police will issue a summons against the accused, informing them of the details and date of the hearing. However, the accused may choose to agree, ignore or plead for another date to get their legal team in shape.

Breaching an AVO order in Australia;

While the AVO order is a nationwide section of the law, different States may possess peculiarities in the execution. One of such differences is in the punishments they attach to breaching an AVO order.

Breaching a Restraining Order

Any accused person that breaches an AVO (Restraining order in this case) will be arrested and charged by the Police.

If such breach includes the FVRO or a VRO, they will be remanded in Police Custody pending their appearance in court.

The court may also consider the possibility of a future breach before they release the offender.

The Maximum penalty of breaching an FVRO or VRO or a Police Order is 2 years imprisonment and a $10,000 fine. However, stiffer penalties will follow for repeat offenders or those who have breached a Restraining order in the past 2 years.

Australian Capital Territory (ACT)

Breach of a Domestic Violence Protection Order in the ACT is a serious offence. Although the period for the order is 2 years, any suspicion of breach usually carries humongous punishments.

Section 90 of the DVPO stipulates maximum punishments of;

• 500 penalty units ($90 000)
• And imprisonment term up to 5 years

Others are;

• Home detention
• Community service
• Good behaviour bonds
• Breaches of these orders also show up on a Nationally Coordinated Criminal History Check ACT.

Northern Territory (NT)

Under the Domestic and Violence Act of 2007 (NT), the Magistrate court issues orders to protect victims of domestic assaults and violence. It includes;

• Home restrictions
• Proximity orders
• Restriction of obtaining certain licenses and securities

Anyone above 15 years old may apply for a Domestic Violence Order including their legal representative, the Police, or Child protection officer, or court.

Intentional breach of a Domestic Violence order is a criminal offence with maximum punishments of;

• 400 penalty units
• Imprisonment of 2 years
• Or both

New South Wales (NSW)

Section 14 of the Crimes Act in New South Wales stipulates the penalties for breach of an ADVO.

A breach is regarded as non-compliance, attempt to or contraventions of the conditions of an ADVO or ADPO.

The maximum penalty imposed by the court is;

• 2 years jail term
• Maximum fines of 50 penalty units
• Or both

However, the court does not deem it an offence if the protected person aids, abets, counsels or procures the accused to breach the condition. Breaches of AVOs in the state if NSW are disclosed on a Nationally Coordinated Criminal History Check NSW.

Queensland (QLD)

Section 5 of the Domestic and Family Violence Protection Act 2012 (QLD) stipulates the conditions and penalties of breaching a Domestic and Family Violence Protection Order.

For first time offenders, the court may impose a maximum penalty of;

• 120 penalty units
• 3 years imprisonment terms or both.

However, repeat offenders or people with another breach within 5 years may have their penalties increased to;

• 240 penalty units
• 5 years imprisonment term

The Accused may also be liable to similar penalties for breaching a Police Protection Notice. This is backed by section 178(2) of the Act.

Breaching a protection order is a criminal offence and will in most circumstances show up on a police record check.

South Australia (SA)

Section 31 of the Act penalties for those who contravene the conditions of the Intervention Orders Act SA.

In SA, the Intervention Order does not have an expiry date. It continues until a court cancels it.

The Act allows the court to impose maximum penalties of $1250 fines, and expiation fees of $160, under section 13 if you fail to abide by an intervention program order.

However, subsequent contravention and blatant disregard for the intervention program may lead to penalties of;

• $20000 or
• 4 years maximum imprisonment term

Breaching an intervention order is a violation of the law and the offence will show up on a Nationally Coordinated Criminal History Check SA.

Victoria (VIC)

Under the Family Violence Protection Act 2008, breaching any of the conditions of the order is a criminal offence that attracts serious punishments.

Whether it is an interim order or a final intervention order, you will have to go to court to defend the breach.

The maximum penalties imposed for breaching an Intervention order is;

• 240 penalty units in fines ($37,310)
• An Imprisonment term of 2 years

The Victorian court usually considers it a summary offence, and it is treated in a Magistrate's court.

However, repeat offenders of a breach of Family violence intervention order can get maximum punishments of;

• 5 years imprisonment
• 600 penalty units ($93,2756)

To prove the breach of a Family Violence Intervention Order (FVIO), the Police must show that the accused on two occasions within the last 28 days engaged in contravening Acts.

The Victorian Law will not, however, find a protected person guilty of a breach even though they encouraged, omitted or permitted it.

Similar to other States and Territories, breaching an intervention order is a criminal offence that will appear on a national police check VIC.

Tasmania (TAS)

The Family Violence Act 2004 guides the protection laws and orders for people who fear threats or violence. Breaching conditions of this order is a criminal offence in Tasmania under the Act.

In the case of a breach, the Police will arrest the offender, remand them in custody throughout their trials. The court may issue penalties of up to;

• 20 penalty units ($3140)
• 1-year imprisonment term

For subsequent offences;

• The fines are 30 penalty units ($4710) and 18 months imprisonment for second-time offenders
• 40 penalty units ($6,280) and 2 years imprisonment for third term offenders
• Imprisonment terms of over 5 years for fourth and subsequent offences
• Repeat offences are punished irrespective of if it were a different offender.

The state of Tasmania views breaches of a restraint or protection order as a criminal offence and will display the offence on a Nationally Coordinated Criminal History Check Tasmania.

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