Are you experiencing falso AVO claims? to This question is important if you believe an AVO filed against you is based on malicious grounds.
While AVOs are important for ensuring the safety and well-being of individuals, they can also be misused or taken out on false grounds.
Frivolous and vexatious AVO claims can have serious consequences for both the person making the false claims and for you, the person against whom the claims are made.
You may face restrictions on your freedom, damage to your reputation, and potentially criminal charges if you violate the terms of the AVO.
While the person making the false claims may face criminal charges for providing incorrect information to the police or a court.
False AVO Claim Defined
A false AVO claim is an application for an Apprehended Violence Order (AVO) made to the police or privately based on inaccurate or deceptive information.
It is possible for the police to file for an AVO in error.
The police may receive inaccurate information, misinterpret the situation’s circumstances, or make a mistake during their investigation. Sometimes, they may also act based on deceptive or misleading information from a third party.
However, it is essential to note that the police are responsible for ensuring the protection of the community and frequently make decisions based on the available information at the time.
If an AVO is issued based on false information, you have the right to contest the decision and provide evidence to support their case.
A frivolous or vexatious AVO claim occurs when someone intentionally provides fraudulent information or makes false accusations of obtaining an AVO against another individual. This includes false allegations of violence, threats of violence, or intimidation.
What Is a Frivolous and Vexatious AVO?
A frivolous and vexatious AVO (Apprehended Violence Order) claim has no legitimate basis, is intended to harass or aggravate the respondent, or was filed for an improper reason.
A frivolous claim lacks gravity or has no reasonable chance of success. In contrast, a vexatious claim is intended to cause annoyance or distress to the respondent without a valid legal basis.
A court may dismiss an application for an AVO if it determines that the claim is unfounded or vexatious.
This is to prevent legal system abuse and ensure that genuine victims of violence and harassment receive the necessary protection.
If a court determines that an AVO claim was lodged in bad faith, the applicant may be ordered to pay your legal fees or face other consequences.
Tips for Defending Against False AVO Claims
If you have been served with an AVO, it is important to understand your rights and the steps you can take to defend yourself.
- Seek Legal Advice: Always seek the counsel of an experienced lawyer who specializes in AVOs. They can inform you of your rights and obligations and help you construct a solid defence.
- Gather Evidence: If you believe the AVO is without merit, you can assemble evidence to support your position. This could include witness statements, photographs, and other documentation.
- Attend the Hearing: You must attend the AVO hearing even if counsel represents you. This is your opportunity to argue against the AVO and provide supporting evidence.
- Cross-Examine Witnesses: You can cross-examine any witnesses who have provided evidence against you. This affords you the chance to refute their testimony and present your evidence.
- Negotiate a Resolution: If possible, attempt to negotiate a resolution with the individual who issued the AVO against you. This could involve agreeing on a plan for communication or acceptable behaviour to both parties.
- Appeal the Decision: If the AVO is granted, you can appeal the decision. However, this is a complicated procedure that requires legal knowledge and should only be attempted with the assistance of a legal professional.
Things to Do to Defend AVO
When you are named as a defendant in an application for an Apprehended Violence Order (AVO), you must consider how to defend your rights, especially if you believe you are a victim of an unfair application or malicious allegations.
- Respond to the AVO
- Seek legal advice by requesting an adjournment
- Accept the AVO (without admissions)
- Make a cross-application
- Make a request for a Property Recovery Order
- Defend the application by responding and pleading not guilty.
- Go to court
First court dates are called ‘mentions.’ A magistrate will want to know the following:
- If the applicant still wishes to proceed
- Your response to the application.
- Police will represent the protected person if they apply for an Apprehended Violence Order (AVO) on their behalf.
The court’s orders will depend on your response and the applicant’s response.
- Wait for the Decision
Depending on the outcome of your case, the Court will either:
- Finalize Apprehended Violence Orders (AVOs)
- Reject the application.
- A dismissed application may be appealed as follows:
- Appeals must be filed within 28 days of the decision
- In the event that a Final AVO is made against you, you may apply to the following:
- Within 28 days, you can appeal the decision to the District Court.
Applicable AVO Response as Defendant
You can respond to defend yourself against an AVO. If you believe you are a victim of an unfair AVO application, you can do any of the following:
Request an adjournment
You can ask the Court to adjourn your case if you haven’t spoken with a lawyer before your court date.
You can accomplish this by:
- Send a letter to the Court
- If you want more time, ask for it.
The Court usually grants an adjournment if it is the first time a party has requested one. If you consent to the Apprehended Violence Order (AVO), you must tell the court the next time you go to court.
Request that the case be transferred to another court
Apprehended Violence Orders (AVOs) that order you to appear in a court far away from home or that are difficult for you to reach can be moved to another NSW court if you request it.
You can accomplish this by:
- Send a letter to the Court before the mention takes place
- Request a change of venue at the time of mention.
Before the mention, you must write to the Court. It will notify you of its decision. Unless you receive a response before the mention, you should contact the Court.
Because each state and territory has its own AVO laws, you can’t transfer your case to a different court.
Make an appointment for mediation.
A court must refer your case for mediation if it involves an Apprehended Personal Violence Order (APVO) application. If this happens, your case will be adjourned.
You must explain your case to the mediator and the protected person during the mediation.
Making an agreement with the protected person enforceable in court is possible.
Accept the Apprehended Violence Order without admission.
Consenting to an Apprehended Violence Order (AVO) without admitting guilt is possible. In other words, you consent to have an AVO filed against you, but you are not admitting wrongdoing.
The Court can issue an AVO without deciding whether the applicant fears you or whether the facts in the application are true.
An AVO will be issued immediately if you consent without admission.
You will avoid the cost, time, and stress of a hearing.
You must understand all of the orders that will be included in the AVO before you consent to an AVO being made against you.
You may want to cross-applicate if you have already been served with an Apprehended Violence Order (AVO) but you also fear the protected person.
You should expect the Court to treat your application as if it were a normal AVO request.
Object to the application
You can request a hearing if you disagree with the Apprehended Violence Order (AVO) being made against you.
You won’t be able to tell your side of the story until the hearing.
The Court may take the following actions if you oppose the application:
- Direct you and the applicant to exchange written statements
- To ensure all statements have been filed, set a date for further mention.
The Court may also order you to receive evidence briefs if you have been charged with a crime.
AVOs do not result in a criminal record. Breaching an AVO, however, is a criminal offence. As part of an AVO, you may also be prohibited from having firearms or security licenses or working with children.
Consequence of False AVO Claims
Falsely claiming an AVO is not technically a crime (AVOs are orders, not charges), but making false accusations is punishable under section 314 of the NSW Crimes Act 1900.
False AVO claims are misleading statements made by someone to obtain protection under an AVO by exaggerating, being vexatious or fabricating completely false allegations against a defendant.
False or vexatious AVO claims can be filed for various reasons, such as punishing the person, harming their reputation, gaining financial gain or achieving custody.
AVOs are generally used to address domestic violence issues, so erring on the side of caution can lead police to make the wrong decision.
Common Motivations Behind Frivolous AVO Claims
Some of the factors that can contribute to frivolous AVO claims include:
- Emotional distress: In some cases, individuals may make false AVO claims out of anger, frustration, or emotional pain, without fully considering the consequences of their actions.
- Attempt to gain an advantage: False AVO claims can also be made to gain an advantage in a legal dispute or personal conflict. For example, someone might falsely claim to obtain an AVO and restrict the other person’s freedom or movements.
- Lack of understanding: Some individuals may not fully understand the legal process for obtaining an AVO or the consequences of making false claims. This can lead to frivolous or false AVO claims being made.
- Personal gain: In some cases, false AVO claims may be made for personal gains, such as to obtain financial compensation and sole parenting rights or to seek revenge.
Chapter 7 of the Improvements in Family Law Proceedings tackles perjury, making frivolous AVO claims, and how they are becoming common nowadays.
To defend yourself against an AVO, you must understand the legal process and your rights as the defendant.
Consultation with an experienced lawyer specialising in AVOs is essential, as they can advise you on the best course of action and assist you in constructing a solid defence.
It is possible to defend against an AVO by gathering evidence, attending the hearing, cross-examining witnesses, negotiating a resolution, and appealing the decision.
Remember that AVOs are significant legal matters that should not be treated lightly.
By learning your rights and responsibilities, you can improve your prospects of obtaining a favourable outcome in an AVO case.
Need an Experienced AVO Lawyer?
At Justice Family Lawyers, we understand AVO’s complexity 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 in family law matters, 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.