An apprehended violence order (AVO) application is not a criminal charge, and defending one is not about proving your innocence. It is a decision about which of three responses fits your situation.
Being served is confronting, and the paperwork explains almost none of what happens next. The person applying has to satisfy the court of three things on the balance of probabilities, and you can consent with or without admission, negotiate the conditions, or contest. Consenting is sometimes the right call, and I will be upfront about when.
An AVO is a protective order, not a conviction. Contravening one is a criminal offence, and that is the part people underestimate.
What to do in the first week
Work through these five steps before you decide anything.
- Follow every condition from the moment you are served. They bind you, not the protected person, so they hold even if that person contacts you first. An interim court order has the same effect as a final AVO while it is in force (Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 22(6)).
- Find your first court date. It is on the front of the application and it is called the mention. Nothing is decided about the allegations that day.
- Get advice before that date, not on the morning of it.
- Choose your route. Consent with or without admission, negotiate the conditions, or contest.
- Start collecting your own records now. Messages, call logs and calendar entries are recoverable for a while, then they are not.
What you need before your first court date
Bring this even if you have not chosen your route. A magistrate cannot act on what is in your head.
- The application and any police statement of facts
- Your copy of the order and its exact conditions
- Dates and times of each allegation, in order
- Your own contact records for those dates
- Names of anyone who was present
- Any current family law or parenting orders
- Details of a firearms licence, or a job that needs one
Take it in a folder, not on your phone.
What the court actually has to be satisfied of
An AVO is one of two things. An apprehended domestic violence order, or ADVO, is made where you and the protected person have or have had a domestic relationship. The other is an apprehended personal violence order, or APVO.
For an ADVO, the court must be satisfied on the balance of probabilities that the protected person has reasonable grounds to fear, and in fact fears, a domestic violence offence or intimidation or stalking, being conduct that in the court’s opinion is sufficient to warrant the order (CDPV Act s 16). The same structure applies to an APVO (s 19).
Balance of probabilities means more likely than not, not the criminal standard. Nothing is proved beyond reasonable doubt, which is why an order can be made without a charge or a conviction against you.
One qualification matters. Actual fear does not have to be proved where the protected person is a child, or has an appreciably below average general intelligence function. Nor does it have to be proved where all three of these are made out (s 16(2)):
- the person has been subjected on more than one occasion to that conduct, and
- the court is satisfied it is likely to happen again, and
- the court is satisfied the order is necessary in the circumstances to protect them.
When the child exception, the intelligence exception, or that three-part route applies, the actual-fear argument is not available.
Which limb are you arguing?
The test has three limbs, meaning three separate things the applicant has to establish, and the court must be satisfied of each. This is what decides whether contesting is realistic, so be honest about what you can put in front of a magistrate.
Reasonable grounds to fear. The applicant relies on their account, supported by messages, third-party accounts and any police record. What realistically moves it: records placing you elsewhere, the full message thread rather than the extract, documents showing the account has changed.
The protected person in fact fears you. The applicant relies on their own evidence, and their conduct since. What realistically moves it: contact records showing the relationship continued in the ordinary way, family law documents inconsistent with fear.
The conduct warrants an order. The applicant relies on the nature and pattern of what is alleged. What realistically moves it: evidence the conduct was isolated and has not recurred, or a narrower set of conditions the court can make instead.
Arguing a limb is the wrong call where you accept most of what is alleged, where an exception removes the actual-fear limb, or where the disputed incident is one part of a longer history. If two of those limbs are empty for you, contesting is probably not your route, and pushing on costs you months for the same order. Legal Aid NSW publishes a plain-English version of the same decision for defendants.
Your three ways to respond
1. Consent without admission
The court can make the order where both sides consent, without being satisfied of the usual prerequisites, and whether or not you admit any of the particulars (CDPV Act s 78).
What it buys you: the matter ends early, you admit nothing, and no findings are made about your conduct. What it costs you: an AVO exists against you for its full term, on whatever conditions are written on the paper. Consent is a real option, not a last resort. Just do not agree to conditions you have not read line by line.
2. Negotiate the conditions
Every AVO carries the mandatory prohibitions in s 36, which sit on every order in the state and do not change. The additional conditions are the negotiable part, and they decide whether you can go home, collect your belongings, attend changeover or keep working.
In my experience most people spend their energy on the order and almost none on the conditions. That is backwards.
3. Contest the application
Tell the court you oppose the order and the matter is set down for a contested hearing, usually months away. Both sides file evidence, witnesses can be cross-examined, and a magistrate decides. Any interim order continues meanwhile, so contesting does not loosen the conditions while you wait. Two requests sit inside this route rather than being strategies of their own: an adjournment so you have time to get advice, and a transfer so the matter is dealt with at a different court where your circumstances warrant it. Here is what happens at an AVO court hearing if that is your route.
You may have read that mediation is an option. For a domestic AVO it is not. A court must refer an APVO application to mediation unless there is good reason not to, and that section does not apply to domestic applications (s 21).
Interim and provisional orders
Police can obtain a provisional order before you get anywhere near a courtroom (CDPV Act s 28). It binds you straight away.
On the first return date the court can dismiss the application, revoke the provisional order, or make an interim or final order in the same terms. If it does none of those, the provisional order becomes an interim court order and keeps running (s 32). Where a person is charged with a serious offence, the court must make an interim order protecting the alleged victim, whether or not anybody applied for one (s 40).
If the application is false or exaggerated
It happens, and I am not going to pretend otherwise. But the answer is evidence, not accusation. Telling a magistrate the application is a lie, without records to show it, tends to confirm the picture the applicant has painted.
Knowingly accusing someone you know to be innocent, intending them to be investigated, carries a maximum of 7 years (Crimes Act 1900 (NSW) s 314). On costs, in ADVO proceedings a court cannot order a private applicant to pay yours unless it is satisfied the application was frivolous or vexatious, and cannot order costs against a police applicant outside the narrow grounds in CDPV Act s 99A. Read the penalties for a false accusation before you build your response around it.
What happens if the order is made
Duration. An ADVO runs for two years where the court specifies no period, or one year if you were under 18 when the application was first made (s 79A). An APVO defaults to 12 months (s 79(3)).
Breach. Knowingly contravening an AVO carries up to 2 years imprisonment or 50 penalty units, or both (s 14(1)). At the current penalty unit of $110 that is $5,500 (Crimes (Sentencing Procedure) Act 1999 (NSW) s 17). That is the criminal side of a civil order, so know what counts as breaching an AVO before you assume anything is allowed.
Firearms. A licence is automatically suspended when an interim AVO is made and revoked once an AVO is made (Firearms Act 1996 (NSW) ss 23 and 24). A new licence cannot be issued within 10 years of you being subject to one, unless that order was revoked (s 11(5)(c)).
Your belongings. Where either of you has left property at the other’s premises, the court can make a property recovery order (s 37). You can ask for one yourself rather than waiting on the police or the applicant.
If the order is made and you disagree
An AVO made in the Local Court can be appealed to the District Court, and you have 28 days (Crimes (Appeal and Review) Act 2001 (NSW) s 11(2)). Separately, a final order can be varied or revoked later if circumstances change (CDPV Act s 73), and you can apply to have the order removed on that basis rather than appealing.
Talk it through before the mention date
Most of the damage I see was done in the first fortnight, by people who breached a condition without meaning to or agreed to something at court they had not read. Bring the application, your dates and your records to me and my team. Our AVO lawyers in Sydney will tell you honestly whether contesting is worth it. Call 1300 614 732 for a free discovery call.
Follow the conditions, get the advice early, and make this decision on what you can prove, not on how the application made you feel.
Frequently Asked Questions
How to defend yourself against an AVO in NSW: what are your options?
Three: consent with or without admission, negotiate the conditions, or contest the application at a contested hearing. Which one fits depends on what the applicant must prove, what records you hold, and whether the conditions or the order itself is the real problem.
What does the applicant have to prove to get an AVO?
For an ADVO, the court must be satisfied on the balance of probabilities that the protected person has reasonable grounds to fear, and in fact fears, a domestic violence offence or intimidation or stalking, being conduct sufficient to warrant the order (s 16). That standard means more likely than not.
Is an AVO a criminal charge?
No. An AVO is a civil protective order, not a conviction. Knowingly contravening one is a criminal offence carrying up to 2 years imprisonment or 50 penalty units, or both.
What does it mean to consent to an AVO without admission?
The order is made because both sides agree to it, without the court being satisfied of the usual prerequisites and without you admitting any of the particulars (s 78). It still binds you for its full term, so read every condition first.
What happens at the first mention date?
Yes. The mandatory prohibitions in s 36 cannot change, but the additional conditions can be negotiated. That is where your home, your belongings, changeover and your work are settled, and it is often the more useful conversation.
How does the court decide parenting when the other parent is a narcissist?
Nothing is decided about the allegations. You tell the court whether you consent, ask for an adjournment to get advice, or oppose the order. If you oppose it, the matter is set down for a contested hearing and any interim order continues until then.
How long does an AVO last in NSW?
An ADVO runs for two years where the court specifies no period, or one year if you were under 18 when the application was first made (s 79A). An APVO defaults to 12 months (s 79(3)). A court can set a different period.
Can I get my belongings back if I cannot go to the house?
Yes. Where either person has left property at the other’s premises, the court can make a property recovery order (s 37). You can apply for one yourself rather than waiting on the police or the applicant to organise access.
