A lot of people may wonder how to beat an AVO in Australia. An Apprehended Violence Order (AVO) or an Apprehended Domestic Violence Order (ADVO) are court orders that protect a person from domestic or family violence. A court may draft this order if a person has reasonable grounds to fear for their safety or well-being due to the conduct of the apprehender.
Courts may also draft an Apprehended Personal Violence Order (APVO) to prevent a certain person from having any type of contact with a victim. In family law matters, a party may seek AVOs against another party, particularly in the context of parenting disputes. AVOs are also important for the security of children, especially if they were also victims of domestic violence.
It’s important to be aware that although an AVO doesn’t constitute a criminal charge or conviction, breaching an AVO is a criminal offence. Additionally, you have the right to defend yourself against it. In this article, we’ll provide you with a step-by-step guide on how to beat an AVO in family law matters. This article will also include the strategies and legal procedures that can help you successfully contest it.
Relevant Legislation
The offence of breaching an AVO in New South Wales is set out in section 14 of the Crimes (Domestic and Personal Violence) Act 2007 . It carries a maximum penalty of a fine of 50 penalty units or imprisonment for two years. According to Section 79 of the Crimes (Domestic and Personal Violence) Act, a final AVO lasts for the length of time stated in the order, with the period of time set out by the Court being:
“As long as is necessary, in the opinion of the court, to ensure the safety and protection of the protected person.”
Steps for Contesting an AVO
So what are some strategies when discussing how to beat an AVO? There are several steps you can use to strengthen your case if you’re contesting an apprehended violence order in family law matters. These are:
Step 1: Seek Legal Advice
It is important to seek legal advice from criminal lawyers as soon as possible if you have been served with an AVO. A lawyer can provide you with guidance on the AVO court process, your rights and obligations, legal costs, and the best defence strategy for your case.
Step 2: Gather Evidence
Gathering evidence is crucial to beating an AVO. Evidence may include witness statements, text messages or emails, social media posts, or CCTV footage. It is important to gather as much evidence as possible to support your defence.
Step 3: Develop a Defence Strategy
This is an important step when a person wants to know how to beat an AVO. Once you have gathered evidence, you should develop a defence strategy with your lawyer. This may include:
- Challenging the validity of the AVO
- Presenting evidence to disprove the allegations; or
- Arguing that the alleged behaviour did not meet the legal criteria for an AVO.
Step 4: Attend Court Hearings
You may be required to attend court hearings to present your defence during the court date for the hearing. It is important to be well-prepared during court hearings. You may have the opportunity to challenge the evidence presented by the applicant. This may involve:
- Cross-examining witnesses
- Pointing out inconsistencies or contradictions in the evidence; or
- Presenting counter-evidence to dispute the allegations against you.
Step 6: Present Your Defence
This is also an important step when a person wants to know how to beat an AVO. Once the evidence has been presented, it is important to present your defence clearly and confidently. Your defence may include:
- Explaining your version of the criminal law matter
- Providing alibis or witnesses to support your defence; or
- Arguing that the allegations do not meet the legal requirements for an AVO.
Step 7: Comply with Court Orders
Even if you are confident in your defence and believe that the AVO is unjustified, it is important to comply with any court orders. An alleged offender should comply with the conditions of the AVO, until it is formally revoked or dismissed by the court. Failure to comply with court orders can result in further legal consequences and may weaken your defence.
An interim AVO is a Court-enforced temporary AVO during the case or adjournment period. The party seeking it may need to provide evidence (oral, affidavit, or written statement from a police officer) to the magistrate and get Court approval for temporary protection.
The Court must make an interim AVO, regardless of any presented application if the alleged person is charged with serious offences like:
- Attempted murder
- Domestic violence
- Wounding
- Grievous bodily harm; or sexual assault.
How To Beat an AVO: Common Defences
False Allegations
If you believe that the allegations against you are false or exaggerated, you can present evidence to challenge the credibility of the applicant’s claims. This may include providing alibis, witness statements, or evidence that contradicts the applicant’s version of events.
Self-Defence
This is a common defence when knowing how to beat an AVO. If you have been accused of violence but acted in self-defence, you can present evidence to support your claim. This may include proving that you were defending yourself or others from harm or that your actions were reasonable in the circumstances.
Lack of Evidence
If the applicant fails to provide sufficient evidence to support their claims, you can challenge the validity of the AVO. This may involve:
- Cross-examining witnesses if they really had a fear of personal violence offence from you
- Pointing out inconsistencies or contradictions in the evidence; or
- Presenting evidence that disproves the allegations against you.
Consent
If the alleged victim consented to the behaviour that led to the AVO, you can argue that the AVO is unjustified. This may involve presenting evidence of:
- Prior agreements
- Text messages; or
- Other communication that shows that the alleged victim consented to the behaviour.
Lack of Intent
If the alleged behaviour does not meet the criteria for an AVO, you can argue that you did not have the intent to commit violence, harassment, or intimidation. This may involve presenting evidence that the behaviour was accidental, misinterpreted, or taken out of context.
How To Beat an AVO: Lifting the AVO
To successfully contest an AVO, the defendant must demonstrate the absence of the factors outlined in Section 16 of the CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007. These include proving that:
- The alleged victim does not have reasonable grounds to fear a domestic violence offence from the defendant
- The alleged victim does not have reasonable grounds to fear intimidation or stalking from the defendant
However, the defendant may not be able to contest the AVO if:
- The alleged victim is a child or has an appreciably below-average general intelligence function; or
- The Court determines that the alleged victim has been subjected to personal violence on more than one occasion by the defendant and is likely to suffer it again
The Court may also consider other factors under Section 17(2) of the Act, such as:
- The effects and consequences on the safety and protection of the protected person and any children living at the residence if an order prohibiting or restricting access to the defendant’s residence is not made
- Any hardship that may be caused by making or not making the order, particularly to the protected person and any children
- The accommodation needs of all relevant parties, especially the protected person and any children
- Any other relevant matters.
Can an AVO Be Amended or Varied?
Yes. Applications to vary or amend an Apprehended Violence Order need to be submitted to a local court. This can be done by a police officer, yourself or the protected person. Where the protected person is a child only the police can apply for the Apprehended Violence Order to be varied or revoked.
Seeking Legal Advice About Criminal Law Matters
Having an AVO taken out against you can be a distressing experience, and can have a real impact on your lifestyle. This can include your ability to find certain types of employment in the future, and to hold a firearms licence. Criminal charges can also affect your relationships with friends and family, particularly those who are protected under the AVO.
However, it’s important to remember that you have the right to defend yourself against it. We at JB Solicitors can help with the legal procedures involved, and gather evidence. This way our family lawyers can increase your chances of successfully contesting the AVO and maximise the chances of avoiding a criminal record.
Contact us today if you want to know more about apprehended violence orders.
