Domestic Violence Charges & AVOs in NSW
What is domestic/family violence?
Domestic or family violence involves behaviour in a domestic (or family) relationship that is violent, threatening, coercive, controlling or in some way abusive. It can include assault, stalking, intimidation, harassment, property damage, psychological abuse and other damaging behaviour.
Under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), many of these behaviours are addressed when they occur in a “domestic relationship”. There is a legal definition of what a “domestic relationship” is, however, it is technical and something that we can discuss further during our conference or as the matter progresses.
If you have been charged with a domestic violence offence or AVO breach and you would like assistance to understand your options, Tyson Brown is a NSW Law Society registered criminal lawyer, with a decade of experience acting for people charged with criminal and/or traffic offences.
Call 0420 961 953 for personalised advice and service.
What is an AVO?
An Apprehended Violence Order (AVO) is a court order intended to protect a person in need of protection (the “PINOP”) from another person (the “defendant”) whose behaviour causes fear or has already caused harm.
In NSW there are two main types:
- Apprehended Domestic Violence Order (ADVO): when there is a domestic/family relationship between the parties.
- Apprehended Personal Violence Order (APVO): when the parties do not have a domestic relationship (for example neighbours, work-colleagues) but the behaviour is threatening, harassing or violent.
- The police can apply for an AVO on behalf of the protected person.
- A person aged 16 or over can apply themselves to the Local Court if the police have not done so.
An AVO may be made:
- If an individual has experienced physical or sexual assault, threats of harm, stalking, harassment or intimidation.
- If an individual has property damaged, or had animals harmed or threatened.
- The court is satisfied an individual has fear for their safety (or a person they care for does) because of the other person’s behaviour.
All AVOs in NSW include a standard condition that the defendant must not: assault, threaten, stalk or harass the protected person (or a person with whom the protected person has a domestic relationship).
Additional conditions might include:
- Not contacting them (including by phone, text, social media) except through a lawyer. Being excluded from the home, or not residing in the same premises.
- Not being able to consume drugs or alcohol within a 12 hour period of being in the presence of a protected person.
- Not coming within a certain distance of the protected person’s home, work or school.
- Being prohibited from possessing firearms or weapons or working with children.
If the defendant knowingly does something the AVO prohibits, they may be charged with contravening (breaching) the AVO (a criminal offence), in addition to any underlying offence (like assault or intimidation).
Penalties (as at this writing):
- Standard breach: up to 2 years’ imprisonment and/or a fine (Up to about $5,500) in the Local Court.
- More serious offences (breach with intention to harm or cause fear; repeat breaches within 28 days): penalty may go up to 5 years’ imprisonment, and/or larger fines (Up to about $16,500) depending on circumstances.
That depends on the conditions of the order, and potentially can be negotiated with police and the Domestic Violence Liaison Officer (DVLO). However, if you are unsure, to be safe, I would avoid doing so until you have had a conference with Tyson Legal.
That depends on who initiated the AVO:
- If it is an AVO initiated by police, then NO. Police will not ordinarily revoke an AVO even if the applicant/alleged victim changes their mind. This often causes significant issues if one of the parties can no longer live or go within a certain distance of the family home. Conditions of the AVO potentially can be negotiated with police, however, this is something that I would need to do for you on your behalf.
- If it is a an AVO initiated by an individual against another, then YES. They (the individual who made the original application) can make an application to the court to revoke the APVO application.
No
An AVO itself is not a criminal conviction. But if you breach the AVO you can be charged with a criminal offence.
YES. An AVO remains in force for the period specified by the court. It can be varied or revoked in some circumstances. Courts may review or extend orders.
YES. An ADVO operates nationally (across Australia).
Unfortunately, even if you didn’t intend to breach, you may still be charged if the breach was “knowingly” made. If you genuinely had no idea, there may be a defence, however, that would need to be ventilated in court, and this is something that you should be legally represented for.
Domestic violence criminal charges
When a person in a domestic relationship commits an offence (such as assault, stalking, intimidation, property damage) the police may charge them and also apply for an ADVO.
What can the police do?
- If the police suspect a domestic violence offence has occurred, they can place you under arrest and take you to a police station for questioning or to be charged. As always, my advice if arrested, is to exercise your right to silence and not participate in an interview.
If the police suspect a domestic violence offence (or that one will be committed), they may apply for a Provisional ADVO immediately to ensure protection while the matter proceeds.- The court may make an Interim ADVO before the first court mention.
- Domestic violence offences often carry serious consequences: if found guilty, the court must impose either full-time detention or a supervised order, unless the court is satisfied another sentence is appropriate. Prior convictions for domestic violence are an aggravating factor.
Bail and domestic violence charges
When charged with a domestic violence offence and subject to an AVO, bail may be refused (especially for serious offences) or granted with strict(er) conditions. The existence of an AVO and the domestic violence nature of the matter are relevant factors.
Firearms/licence implications
If you are charged with a domestic violence offence (or there is reason to believe you threatened or will commit one), your firearms licence must be suspended, the police can confiscate or you may be required to surrender your firearms and weapons.
Working with children
It is extremely likely that if you have an AVO against you, then your working with children accreditation will be revoked.
If you are a defendant (person accused / served with an AVO / charged):
- Contact Tyson Legal urgently. Having an AVO made or being charged with a domestic violence offence is extremely serious.
- Understand the AVO’s conditions and ensure you comply, as even accidental or inadvertent breaches can lead to charges or additional charges.
- Police should issue you with a copy of the brief of evidence (mini-brief) at the police station upon release or at court on the first mention. This will include any evidence that the police are relying upon to convict satisfy the court that an AVO is required, evidence against you of any alleged criminal offence(s), and my include items such as a copy of the AVO paperwork, discs with video evidence and or written statements.
- As with all legal matters, any history of previous domestic violence convictions (even if is against a different person) does increases the sentence risk of a more severe outcome.
Seeking Legal Advice
If you or someone you know is facing a criminal charge, it is essential to seek legal advice early. Contact Tyson Legal as soon as practicable to:
- Assess the strength of the prosecution case,
- Identify possible defences, and
- Negotiate with prosecutors or represent you in court.