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How to get a private AVO (Apprehended Violence Order)
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How to get a private AVO (Apprehended Violence Order)

Sydney Criminal Lawyers Blog

28/01/2013

How to get a private AVO (Apprehended Violence Order)

How to get a private AVO (Apprehended Violence Order)
How to get a private AVO (Apprehended Violence Order)

There are two broad categories of AVOs:

1.  AVOs applied for by police on behalf of ‘persons in need of protection’ (or ‘PINOPS’). These are called ‘police AVOs’; and

2. AVOs applied for by individuals. These are called ‘private AVOs’.

The person applying for the AVO is called the ‘applicant’.

The person against whom an AVO is sought is called the ‘defendant’.

This is a basic guide to the steps for getting a private AVO.

1. Get Legal Advice
The first step is to get legal advice about your chances of succeeding in your AVO application.

This is important because an unsuccessful application can be a waste of your time and may lead to legal costs being awarded in favour of the defendant.

Many Criminal Lawyers in Sydney offer a free first appointment where you can discuss your case and get advice about your chances.

Or, for more information about what you need to show to get an AVO, see our main AVO page: http://www.criminallaw.com.au/apprehended-violence-order

2.  Complete and File an ‘Application for Orders’
If your chances of getting an AVO are good, you can start your AVO proceedings by filling out an ‘Application for Orders’.

You can do this by:

a. Contacting your nearest local court and arranging to meet a ‘Chamber Magistrate’ to help you fill out the form,

b. Making a conference with your criminal lawyer who can fill out the form comprehensively and effectively, or

c. Filling out the form yourself.

The information you will need includes:

(i) The defendant’s name, address and date of birth (or approximate age),

(ii) The name of anyone else you want to add eg the defendant’s brother,

(iii) Your relationship with the defendant eg ex partner, neighbour, colleague etc, 

(iv) An outline of the incident or incidents giving rise to your fear eg a recent fight, threats etc,

(v) Any material showing that the incident/s are real eg police or medical reports, photos of injuries or damage etc,

(vi) The orders you would like (see '9. orders that can be made' below).

If you are seeking an Apprehended Domestic Violence Order (‘ADVO’) you should also have provide any information about:

(i) The length of your relationship with the defendant,

(ii) The names and dates of birth of any children,

(iii) Whether there have been any threats against the children, and

(iv) Details of any Family Court proceedings including any current orders.

You will then have to sign the application and ‘file it’ (give it for processing) to the Court Registry.

The Court will give your case an initial court date, which is called the first ‘Mention’ date (see below).

3.  Serve the AVO on the Defendant
Once the application is filed, it must be then served upon (or given to) the defendant.

You should ask the Court whether they will arrange for it to be served, and who will serve it eg City Central Police or the Court Sheriffs.

If they won’t arrange for it to be served, you will have to arrange for a police officer or sheriff to serve the AVO.

A criminal lawyer can assist in arranging service.

Whoever serves the AVO must fill out a ‘statement of service’ and send it back to the Court.

This proves that the defendant got the AVO.

If the defendant cannot be served, an application can be made to the court to notify the defendant in another way.

This is called ‘substituted service’ and the Court or your criminal lawyer can advise you about this.

4. Prepare for Court
Your AVO application will contain the first court date and location.

Before going to court, you should consider getting representation from a criminal lawyer who can give you the best chance of success.

If your case is in Sydney, you should get representation from criminal lawyers in Sydney as they will be familiar with the court and Magistrate and will know how to best present your case.

If you are self-represented, you should still seek advice from experienced criminal lawyers who can advise you about your options, how to prepare for your case, what to say, the matters that the Magistrate will consider and so on.

You should take a copy of your AVO application with you to Court.

5. Attend Court
If you are self-represented, you should check the court’s ‘Noticeboard’ to make sure that your matter is listed and to see which courtroom you will be in.

If the court has a ‘Registration Desk’, you should tell the person behind the desk your name.

You should then enter the courtroom and wait until your name is called.

Once called, you should walk up to the microphone and tell the Magistrate what you would like to do.

Your options will be to:

a. Withdraw the AVO application, eg if you are no longer afraid of the defendant, or

b. Proceed with the AVO application.

The defendant will then be asked what he or she wants to do. The options will be:

a. Ask for an ‘adjournment’ to get legal advice, or

b. Consent (agree) to the AVO ‘without admissions’ in which case a Final AVO will be made and the case will be over.

Additional options are for you and the defendant to:

a. Agree to ‘Undertakings’, which are a document signed by the defendant or both parties agreeing not to engage in certain types of conduct (eg not harass, threaten or otherwise interfere with each other).

In that case, the AVO application will be dismissed and the Undertakings will remain on the Court file, or

b. Seek ‘Mediation’ at a Community Justice Centre or another Mediation Organisation to try to resolve your problems without the further need for court.

In that case, your court case will be adjourned pending the outcome of mediation.

If mediation is successful, the Court will be notified and there will be no need for further proceedings.

6. If the AVO Case Proceeds
If you and the defendant continue with the case, the Court will set down a ‘Timetable for Statements’.

This means that the Court will order that you serve on the defendant, by a certain date (usually 2 weeks), a copy of:

(a) your written statement, and

(b) any written statements from witnesses you intend to call at the hearing.

If the defendant does not have a lawyer, you will be allowed to serve the statements on the Court Registry.

The Court will additionally order that the defendant serve on you, by a certain date (usually 4 weeks), a copy of:

(a) his or her written statement, and

(b) any written statements from witnesses that the defendant intends to call at the hearing.

The Court will set-down a further court ‘Mention’ date, usually 5 weeks away, to ensure that both you and the defendant have complied with the orders.

If you don’t serve your statements on time or fail to attend Court, the Magistrate can ‘strike out’ your application.

 If the defendant fails to serve his or her statements on time or fails to attend Court, the Magistrate can make a Final AVO against him or her.

If the statements are served and both parties attend Court, the case will be set down for a ‘Hearing’ when the Magistrate will decide whether or not the AVO will be granted and, if so, the ‘orders’ (or conditions) of the AVO.

7.  Prepare for the Hearing
You should gather as much evidence as possible to support your application.

This might include issuing ‘Subpoenae for Production’ to various organisations to obtain supporting evidence, 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 to show that the defendant was ‘harassing’ you, and/or

- Subpoena to social media sites such as Facebook or Twitter to show that the defendant making threats or demeaning comments about you.

It is best to issue these subpoenae as early as possible.

Your criminal lawyer can draft, file and serve the subpoenae on your behalf.

Cases are often won (or lost) based on evidence that one party has been able (or unable) to obtain.

If you require witnesses to attend Court, you should issue ‘Subpoena to Give Evidence’, which is a document legally requiring them to attend.

Preparation is the key to running a successful AVO hearing.

Ensure that all materials are obtained, ordered and thoroughly gone-over and an outline is prepared of relevant matters you wish to raise.

Of course, an experienced AVO lawyer will know how to efficiently prepare and effectively run a hearing on your behalf.

8. The Hearing Day
It is common for parties to come to some sort of an agreement on the morning of the Hearing.

This might occur through:

a. One or both parties entering ‘Undertakings’ not to engage in certain types of behaviour.
These Undertakings can be drafted by the defendant and you, or by lawyers on your behalf.

b. The defendant agreeing to the AVO ‘without admissions’ ie without admitting that he or she engaged in the conduct you allege.

c. You withdrawing your AVO application.

If such agreement is reached, the case will be ‘Mentioned’ in Court and the Magistrate will be told of the resolution.

In any case, both parties can agree to pay their own legal costs.

If the case proceeds, the witnesses will be called one at a time.

You must ensure that your witnesses are outside the courtroom until they are called.

You will normally be the first witness.

The Magistrate will read your written statement, which will constitute your ‘evidence in chief’; which means the information you rely upon to convince the Court to grant an AVO in your favour.

The defendant – or their lawyer – will then ask you questions.

It is important to:

a. Listen to the whole question
Listen to the question, pause if necessary and only answer that question.

Do not give information that is not requested. Just answer the question!

Here is an example – If I show someone a black pen and ask ‘Do you know what this is?’, the person might answer ‘a black pen’. That is not the answer! The answer is ‘Yes’.

The next question might be ‘What is it?’ and the answer would be ‘a pen’

So, focus on the question and only answer the question.

b. Don’t answer a question you didn’t hear or don’t understand
If you didn’t hear the question, say ‘could you please repeat that question, I didn’t hear it’.
 
If you don’t understand the question say so! Do not answer a question you don’t understand.

c. Don’t guess the answer
If you don’t remember something, say ‘I don’t recall’. If you don’t know the answer, say ‘I don’t know’.

Don’t guess an answer or say something you think might assist you. This can often backfire.

d. Keep your answers as short as possible
 Give ‘yes’ or ‘no’ answers when possible. Otherwise, keep your answers as short as possible.

e. Speak loudly, clearly and slowly
Remember, the Magistrate will be taking notes of your answers.

f. Never get upset or angry!
 It is easy to get emotional on the witness stand, especially when being asked rude or aggravating questions by the defendant or their criminal lawyer.

However, getting upset or angry, or asking questions back at the questioner, can create a bad impression and decrease your chances of getting an AVO.

Relax as best you can!

Each of your witnesses will then be called to the witness stand and go through a similar process.

The defendant will then take the witness stand and the Magistrate will read his or her statement.

You (or your criminal lawyer on your behalf) will then have the opportunity to ask questions.

You should keep your questions short and to the point. You should systematically take the defendant through the areas you wish to address.

Always keep in mind what the Magistrate must find before granting an AVO (see http://www.criminallaw.com.au/apprehended-violence-order  ).

Never attack or get angry with the defendant.

Ensure you ‘put your case’ to the defendant ie suggest to them that their version is a fabrication and that it occurred in the manner contained in your statement.

If they say something which is untrue and you have material proving so (eg phone records proving the defendant called you when their statement says they didn’t etc), show it to them, suggest what they said is untrue and tender the material.

This can be extremely powerful and make it hard for the Magistrate to accept anything else they have said.

Each of the defendant’s witnesses will go through the same process.

At the end, 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.

9. Orders that can be made
All AVOs will contain ‘mandatory orders’, which are as follows that the defendant must not:

1. a. assault, molest, harass, threaten or otherwise interfere with you or a person with whom you have a domestic relationship,

b. Engage in any other conduct that intimidates you or someone with whom you have a domestic relationship, or

c. Stalk you or anyone with whom you have a domestic relationship.

The following ‘additional orders’ can also be made:

2. The defendant must not reside where you may from time to time reside, or at another specified premises.

3. The defendant must not enter your residence or workplace, or other another specified premises.

4. The defendant must not go within 'X metres' of your residence or workplace, or another specified premises.

5. The defendant must not approach or contact you by any means whatsoever, except through the defendant’s legal representative or as agreed in writing or permitted by an order or directions under the Family Law Act 1975, for the purpose of counselling, conciliation or mediation.

6. The defendant must not approach or contact you by any means whatsoever, except through the defendant’s legal representative or as authorised by a parenting order under the Family Law Act 1975 unless the parenting order has been varied, suspended or discharged under s68R of the Family Law Act 1975.

7. The defendant must not approach or contact you by any means whatsoever, except through the defendant’s legal representative.

8. The defendant must surrender all firearms and related licences to Police.

9. The defendant must not approach the school or other premises at which you may from time to time attend for the purposes of education or child care or other specified premises:

10. The defendant must not approach you or any such premises or place at which you may from time to time reside or work within 12 hours of consuming intoxicating liquor or illicit drugs.

11. The defendant must not destroy or deliberately damage or interfere with your property.

The Magistrate will determine the duration of the AVO (eg 12 months) and the orders that will be made.

10. Costs in Personal AVO Cases
At the end of the case, the Magistrate has power to order that the losing party pays the winning party’s legal costs.

a. Costs against the defendant
If you win, you (or your criminal lawyer) can ask the Magistrate to order the defendant to pay part of your legal costs.

Those costs will normally be around a half to two-thirds of the legal costs you have paid to your criminal lawyer.

b. Costs against the applicant
If you are unsuccessful, the Magistrate can order that you pay the defendant’s legal costs; or part thereof.

 If the application is an Apprehended Personal Violence Order (APVO), the Magistrate can order that you pay costs for any reason, including that:

- your application was frivolous or vexatious or otherwise made with insufficient merit,

- you, or you and the defendant, did not attend court, or

- you withdrew the application.

However, the Magistrate can only order costs against you in an Apprehended Domestic Violence Order (ADVO) case if:

(i) your application was’ frivolous or vexatious’, or

(ii) if you are a police officer and it can be shown that you made the application knowing that it contained important information that was false or misleading.

By Ugur Nedim

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