How to get a Private AVO

A private AVO is beneficial for those who seek protection against another person when police are unwilling to help.

Applying for a private AVO is a long process and can be confusing if you are uninformed about the many steps of the procedure. The below article will explain the process.

What is a private AVO?

A private Apprehended Violence Order is a legally enforceable order of the court that a person applies for themself.

It can contain various conditions which protect the person in need of protection (PINOP) from the defendant.

They are different from Police AVOs. These are AVOs which the police are applicants on behalf of the PINOP.

The person applying for the AVO is known as the 'applicant'.

The person who the AVO is sought against is called the 'defendant'.

How to get a private AVO?

You can apply for a private AVO through the registrar at the local court. A private AVO does not need police approval so you can apply for one even if the police have refused to make one for you.

It is important to speak with specialist AVO lawyers before commencing the application process. This is because there are certain risks such as a costs order being made against you if you are unsuccessful.

An accredited specialist in criminal law will be able to provide expert legal advice on how to prepare your application, what documents to include and any rules of evidence that may make your evidence inadmissible.

AVO Application Form NSW

There are 3 ways to complete an AVO application form in NSW:

1. Contact your nearest local court and arrange to meet a 'Chamber Magistrate' to help you fill out your form
2. Contact a criminal lawyer who can either prepare the form for you or help you fill out the form comprehensively
3. Fill out the form yourself.

The information that you need to include in your form is as follows:

1. Details of the applicant – your full name and contact details.
2. Details of the protected person/s – including their full name, address, date of birth and their relationship with the defendant. You can have multiple PINOPs, children may also be added as PINOPs in the AVO
3. Details of the defendant – including their name date of birth or age, phone number and address
4. Reasons for why the order was sought – including an outline or details of the events which led to the protected person feeling fearful e.g recent fights, threats etc.
5. Any material which can help prove the incident was real including photos of injuries or damage, medical reports, police statements etc.
6. The AVO Conditions you would like to enforce against the defendant

For an Apprehended Domestic Violence Order (ADVO), you may also want to include

1. The length of your relationship with the defendant
2. The names and date of birth of any children you have together
3. Whether there have been any threats against the children
4. Details of any previous family court proceedings and existing orders

Serve the AVO on the Defendant

An application must be served (given to) to the defendant after it is filed. You can request the Court to arrange for your application to be served to the defendant. If the court does not make arrangements, you can arrange a police officer or sheriff to serve the AVO. Your lawyer can also arrange for a process server to serve the defendant.

After the application has been served to the defendant, a statement of service must be filed at court to confirm that the defendant is aware of the application made against them.

If the defendant cannot be served the application, you may need to apply for a substituted service. This will alert the court to notify the defendant of the AVO in a different way.

Court Attendance

The AVO application will list the first court date and location. A specialist criminal lawyer should attend court on your behalf for the best chance at success.

During the first court date, your lawyer will advise the court whether you want to

1. Withdraw the AVO application – this means you no longer want an AVO in place. This may be because you are no longer afraid of the defendant
2. Proceed with the AVO application – this means you want to continue with the process and enforce and AVO against the defendant for your protection

The defendant will then be asked to respond to the application. They can:

1. Ask for an adjournment to get legal advice; or
2. Consent to the AVO without admissions. This means that the defendant agrees to the AVO but does not admit to any of the allegations in the application. As such, a Final AVO will be made and the case will come to a close;
3. Oppose the AVO. This means that they do not agree to the AVO. If they choose to fight the AVO, a timetable for the filing of evidence will be set for each party.

Undertakings

Undertakings are a document signed by the PINOP and defendant, agreeing not to engage in certain types of conduct. This conduct is usually the same as the conditions of an AVO. Common examples include not harassing, threatening or otherwise interfering with each other.

If both parties consent to the Undertakings, the AVO application will be dismissed and the court will keep a record of the undertakings on file.

Undertakings can be negotiated between the parties and their legal representatives. It is important to note that undertakings only apply to private AVOs and not police AVOs. You can read this guide if you want to know how to get an AVO dropped.

Mediation

Mediation is a process of negotiation through an objective third person. You can seek mediation through the Community Justice Centre or other Mediation Organisations to settle the matter outside of Court.

In private AVO proceedings, mediation is mandatory unless a party has genuine fears of having contact with the other party.

The court will adjourn your matter pending the outcome of the mediation. If mediation is successful the court will be notified and there will be no further proceedings.

Timetable for AVO

If you and the defendant continue with the case, the court will set a Timetable for statements. This is usually a period of two weeks which the court will grant you and your lawyers to prepare and serve the defendant with your written statements and any written statements from witnesses you intend to call at the hearing. If the defendant doesn't have a lawyer, the statements may be served to the Court Registry instead.

The defendant will be given a date, usually four weeks from the application to serve a copy of their written statement and any written statements from their witnesses that the defendant intends to call at the hearing.

It is important to only file evidence that is admissible under the Evidence Act 1995. You should consult with an experienced AVO lawyer to ensure your evidence will not be rejected because it has not been prepared properly.

You can also file a subpoena for evidence that may assist your case such as:

• Subpoena to police to obtain incident reports;
• Subpoena to hospitals, medical centres or doctors to obtain medical records,
• Subpoena to phone companies for telephone records;
• Subpoena to social media sites such as Facebook or Twitter

The Court will set a compliance check mention date 5 weeks away for you and the defendant to comply with the orders. If you fail to submit your statements on time and do not attend your court date, the Magistrate may strike out your application.

If the defendant fails to submit their statements on time or fails to attend the court date then the Magistrate can make a final AVO against them.

Generally, the parties will be granted one adjournment if they have been unable to file evidence. They are unlikely to be granted more than one unless there are compelling reasons (eg. Serious illness has prevented a party from being able to prepare their evidence).

If both parties submit their statements on time and attend court on the Mention date, the court will set a date for a Hearing. At the Hearing, the Magistrate will decide whether an AVO will be granted, and if so, which conditions will be included in the order.

AVO Hearing

The AVO hearing date is when the magistrate decides whether a final AVO will be made. All witnesses give evidence in court and are cross-examined. Legal submissions are also made as to whether there are sufficient grounds for a final AVO to be made.

As such it is crucial that your lawyer is an experienced cross-examiner. Often AVO cases are won or lost based on which witnesses are seen as more credible and reliable. A skilled cross-examiner will be able to systematically dismantle the other side's witnesses and persuade a magistrate to believe their client.

The witness will be cross-examined by the other side. A lawyer who is experienced in cross-examination can make the difference between winning and losing as one party is seen to be more credible than the other.

After all witnesses have provided their evidence, legal submissions must be made pursuant to Section 16 of the Crimes (Domestic and Personal Violence) Act 2007 by each party about why an AVO should or should not be made. The factors the court looks at are:

1. whether the applicant holds genuine fears of the defendant;
2. whether there are reasonable grounds for those fears;
3. the making of an AVO is appropriate in all the circumstances of the case.

At the end of the Hearing, the Magistrate will decide whether a Final AVO will be made in your favour and, if so, the orders (or conditions) that will be made.

AVO Conditions List

The list of AVO conditions is below. Condition 1 is a mandatory condition in all AVOs. The additional conditions are optional.

Condition 1: The defendant must not do any of the following to the protected person or anyone the protected person has a domestic relationship with:

1. assault or threaten them,
2. stalk, harass or intimidate them, or
3. intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of them.

Condition 2: You must not approach the protected person or contact them in any way, unless the contact is through a lawyer.

Condition 3: You must not approach:

1. the school or any other place the protected person might go to for study,
2. any place they might go to for childcare, or
3. any other place listed here___.

Condition 4: You must not approach or be in the company of the protected person for at least 12 hours after drinking alcohol or taking illicit drugs.

Condition 5: You must not try to find the protected person except as ordered by a court.

Condition 6: You must not approach the protected person or contact them in any way, unless the contact is:

1. through a lawyer, or
2. to attend accredited or court-approved counselling, mediation and/or conciliation, or
3. as ordered by this or another court about contact with child/ren, or
4. as agreed in writing between you and the parent(s) about contact with child/ren, or
5. as agreed in writing between you and the parent(s) and the person with parental responsibility for the child/ren about contact with the child/ren.

Condition 7: You must not live at:

1. the same address as the protected person, or
2. any place listed here ___.

Condition 8: You must not go into:

1. any place where the protected person lives, or
2. any place where they work, or
3. any place listed here___.

Condition 9: You must not go within ___ metres of:

1. any place where the protected person lives, or
2. any place where they work, or
3. any place listed here___.

Condition 10. You must not possess any firearms or prohibited weapons.

How Long Does an AVO Last?

The standard length that an AVO is enforceable for is 2 years. Depending on the circumstances of your case, the Magistrate may make it longer or shorter.

Costs in Private AVO Cases

The winning party in a private AVO case will usually be able to have the other party pay their legal costs pursuant to Section 99 of the Crimes (Domestic and Personal Violence) Act 2007.

This means that if the AVO is made, the court can order the defendant to pay the applicant's legal costs. Conversely, if the AVO is dismissed, the Magistrate may order the applicant to pay the defendant's legal costs.

A defendant will need to prove that the application was frivolous or vexatious for a costs order to be made against the applicant (see: Section 99A of the Crimes (Domestic and Personal Violence) Act 2007).

If the parties come to an agreement before the Hearing, part of the agreement can involve each party paying their own legal costs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.