When seeking an AVO in New South Wales, it is crucial to understand the application process. Whether you are a victim of domestic or personal violence, being familiar with how to get an AVO will enable you to navigate the legal procedures more effectively.
In the process of filing for an AVO in NSW, there are two ways.
- Self-applications or Private Applications
Private applications can be made through your local court. To obtain an AVO, you must attend Court and explain your situation.
- Police-assisted Applications
The police will determine which AVO is most appropriate for your circumstances if you request it through them. Police will inform you when you must appear in court regarding the Order. The police prosecutor will represent you in court.
How to Get an AVO for Private Application
Private Apprehended Violence Orders, or AVOs, vary according to the jurisdiction where you live. Private applications for an AVO are generally filed by people who fear for their safety or someone else’s safety and want a court order protecting them.
The application can be summarized as follows:
- Provide evidence: You must provide evidence to support your application for an AVO, such as photographs, medical records, witness statements, or any other relevant documentation.
- Fill out the necessary forms: To apply for an AVO privately, you must complete the appropriate forms online.
- Court Application: You must file the application with the local court once all the forms have been completed and the supporting evidence has been submitted.
- Attend the Hearing: If your application is accepted, you will need to attend an AVO hearing to provide evidence and testimony.
- Wait for the Decision: The court will decide whether to grant the AVO after considering the evidence.
Please note that the process for making a private application for an AVO varies by jurisdiction, so you should seek legal advice regarding the specific process in your area.
How to Get an AVO for Police-Assisted Application
Step 1: Make a Statement
It is important to provide as much information as possible.
In addition to the full name of the person you want protection from, you will need the defendant’s address, date of birth, and relationship with the defendant.
Also, they will inquire about violent incidents involving the defendant.
The police can then use this information to strengthen the application for an AVO by looking for abusive behavior patterns.
Step 2: Sign the Statement
Once you have provided your statement, you must sign it, and then you will receive a copy from the police.
Step 3: Service
After that, police officers must serve the defendant with the application. This will inform them of the court date and other matters regarding the AVO application filed against them.
Step 4: Court Appearance
You and the defendant must appear in court on the specified date and time. It will be up to the court to decide whether an AVO should be granted based on the evidence presented.
Step 5: Wait for the Verdict
If the court issues an AVO, it will specify what the defendant must do, such as not contacting you or your family members.
Read more: Can the Police Withdraw an AVO
How to Get an AVO Without Evidence
At the very minimum, a statement is required from a witness in order to obtain an AVO. Making a statement is part of the Apprehensive Violence Order (AVO) application process.
The statement is considered evidence when it comes to obtaining an AVO. That means aside from giving the defendant’s full name, other personal details, and your relationship with them, you also have to detail the incidents causing you to fear the same person.
Remember that in certain situations, like an AVO for stalking and AVO for emotional abuse, the proof lies in the pattern of the defendant’s behaviour. You have to take down notes or report to the police every incident, allowing you to compile all of them to have strong evidence of intimidation. You will need some form of evidence to obtain an AVO in NSW.
Evidences Usually Presented To The Court
- Witness statements from the PINOP or other witnesses give details of the incidents that caused fear.
- Detailed information about any injuries caused by the defendant, including doctors’ reports or hospital treatment
- Any evidence of property damage (such as photos)
- Drug or alcohol abuse history of the defendant
- Weapons or firearms that the defendant possesses
- Any mental health issues that need to be addressed
- In the past, if any AVOs or other orders have been made to protect you from the defendant.
To understand the rationale behind this, it is necessary to comprehend what constitutes proof in the context of AVOs. Witness testimony, images, text messages, emails, and other types of contact can all serve as evidence.
If you are contemplating asking for an AVO, you should talk to an experienced AVO lawyer who can advise you on the proof you must present to justify your application.
Filing an AVO Without Evidence from the PINOP
The police may provide a statement if they are a witness and determine that an AVO is required to protect the victim. They may petition on the victim’s behalf for an AVO.
An interim AVO is a temporary restraining order issued until a final hearing can be convened.
When the defendant agrees to the issuance of the order, an AVO may also be issued without proof. In this case, the defendant admits to the behaviour that prompted the AVO application, and the court may issue the order without requiring further evidence.
How Long Does It Take for an AVO to Be Served
Once the application is made, it must be personally served to the defendant by a police officer. It normally takes 1 – 7 days for an AVO to be served on a defendant.
After serving the application on the defendant, the police officer will complete a statement of service and submit it to the Local Court so that it would be informed that the defendant is aware of the application made against them.
Occasionally, it is difficult to serve an application on a defendant, and the police may attempt multiple times without success.
In these instances, the Court may order that the application be served through registered mail to the defendant’s address, legal counsel, or a specified relative.
This is referred to as “substituted service.”
The magistrate will only issue an order for substituted service once convinced that serving the defendant personally is not feasible.
Court Process of Serving AVO
Understanding the court process of serving an AVO is vital for both applicants and respondents, as it dictates how and when the terms and conditions of the order come into effect, ultimately impacting the safety and well-being of those involved.
First Court Date
The Local Court normally lists the matter one to three weeks after the application (depending on how often the Local Court is in session and how busy its courts are).
You should be served with an AVO before the first court date so you know you have to attend.
The first return date is also known as “the first court date.”
Even if it’s a police application, the protected person should attend Court on this day to let the prosecutor know they want to proceed and if any orders need to be changed.
The Local Court Practice Note 2 of 2012: Domestic and Personal Violence Cases outlines the measures parties must follow to prepare an AVO case for hearing.
The Court will make a Directions Order about the exchange of evidence that will be used at the hearing.
The Practice Note says that the applicant must give the Court all witness statements that support their application by a specific date (usually two weeks after the mention).
In a police application, the officer making the request will ensure that witness statements and a summary of the evidence are ready to be served to the defendant.
Then, the defendant has to file a statement in response.
Statements must be signed and dated to show that they are valid and correct and should only be about things relevant to the application or its defence. Since a witness’s statement can be used as evidence in an AVO hearing, it’s important to talk to a lawyer before giving one.
If the parties have followed the rules for exchanging statements, the case could be set for a hearing.
This could take up to three months in some courts. An interim AVO can be made or kept in place until the date of the hearing.
Subpoenas may also be requested from the defendant to appear in Court to give oral testimony or to provide specified documents (tell their version of events to the Court).
The Show Cause Hearing
The PINOP must demonstrate the reasons they fear and have grounds to fear future acts of violence, harassment, intimidation, or stalking.
If the protected person is under 16 or has an intellectual disability, indicating that they fear future domestic violence is not essential. An AVO may also be issued without proof of the PINOP’s fear if the Court sees that:
- There is a pattern of violence or a history of abusive behaviour against the protected person.
- There is a strong chance that the defendant will abuse the PINOP again in the future.
- The order issuance is necessary to safeguard the victim from further abuse.
Not Sure If The Evidence You’re Holding Is Enough To Get An AVO?
Get legal counsel to increase your chances of securing an AVO, or defending an AVO.
At Justice Family Lawyers, we understand the complexity of the AVO application process and are committed to providing our clients with the highest quality legal advice and representation.
Our AVO lawyers and practitioners are highly experienced and knowledgeable, and we are committed to helping our clients receive the best possible outcome.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.