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APVO

This article discusses what apprehended personal violence orders (APVO) are, how to apply for one, in what circumstances they can be made, a detailed look at the legal processes and requirements involved and the role of mediation.

What Is An APVO?

The object of the legislation surrounding an apprehended personal violence order, otherwise known as an APVO is “to ensure the safety and protection of all persons who experience personal violence outside a domestic relationship” (Section 10 of the Crimes (Domestic and Personal Violence) Act 2007).

The court can grant an APVO if satisfied that the person(s) in need of protection, has reasonable grounds to fear and in fact fears that the defendant will engage in violence, stalking or intimidation against them.  The person(s) who needs protection can personally apply through the court, which is known as a ‘private application’ or the police can apply on their behalf, known as a ‘police application’.

Restrictions resulting from an APVO

If an APVO is granted, the court can place restrictions on the defendant’s behaviour to ensure the safety of the protected person. This can include:

  • prohibiting or restricting the defendant from approaching the protected person; 
  • prohibiting or restricting the defendant’s access to the protected person’s home or place of work; and 
  • prohibiting or restricting the possession of firearms or other weapons by the defendant.

If a defendant knowingly breaches conditions of an APVO order, they are guilty of a criminal offence and can be imprisoned for up to two years and or face a fine of up to $5,500.00

How to Obtain an APVO

To begin the process of filing for an APVO, a form can be collected from any Local Court, or downloaded online. This form must be completed by answering the questions and providing various pieces of background information relating to the matter, such as

  • The full name of the person you want protection from (the defendant)
  • The address of the defendant
  • The date of birth (if you know it) or an approximate age of the defendant
  • The relationship between you and the defendant, for example neighbours, de facto spouses or other family members
  • The names of anyone else you want protected by the order, for example, other family members who have lived with, or are living with, you
  • Details of the incidents that are causing you to fear the defendant, including the most recent incident
  • Details of any reports or statements made to the police, including any event numbers
  • Details of any doctors reports or treatment by a doctor or hospital relating to any injuries caused by the defendant
  • Evidence of any damage to property (for example photos)
  • Information about the defendant’s use of alcohol or drugs
  • Information about the defendant’s access to firearms or other weapons
  • Whether any AVOs or other orders have been made in the past to protect you from the defendant
  • The orders you think you need.  

The application is then filed with the court and evaluated by a magistrate, who may accept the application and list the matter for first mention, or refuse the application due to it being vexatious, frivolous, or having no prospects of success. 

Once the application has been accepted, it will be listed by a magistrate and personally served on the defendant. This is usually a service provided by the court; however, the court will clarify whether this is required. Once the APVO has been served, a ‘statement of service’ is provided to the court to alert them that the application has been served on the defendant.

What happens in Court?

After the APVO application is filed with the court, the matter will be listed for mention. The mention is the first date an application for an APVO is heard in court. On this date, the applicant and defendant are required to appear. If the APVO has not been served on the defendant and they are not present, the matter will be adjourned to allow service to occur. If the defendant has been served the application, but does not attend, the court may make the order in their absence. If both parties are present, the court will ask the applicant whether the APVO is still required and ask the defendant how they would like to respond to the application.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

How can a Defendant Respond to an AVPO?

The defendant has several options in response to an APVO:

  • Consenting with or without Admissions: The defendant can consent to the APVO (with or without admissions), meaning that they are willing to abide by the orders the Court makes. If this occurs, the conditions of the AVPO will remain in place until it expires.  
  • Opposing the APVO: The defendant can oppose the APVO, meaning that they disagree with the finalisation of the orders and the grounds on which it was made. When this occurs, the magistrate will ask for written statements from witnesses and evidence by both parties.

Evidence Required for APVO

If the APVO is opposed, the magistrate will set down a ‘timetable for statements’ which gives both parties a chance to file evidence in the court supporting the application or opposing it. Each party must file their respective evidence with the court according to the timetable. Below are examples of evidence that can be submitted:

  • Affidavits from self and witnesses
  • Written statements from self and witnesses
  • Screenshots of messages and social media
  • Photos of injuries or damage to property
  • Transcripts of relevant videos
  • Transcripts of audio recordings of threats or harassment
  • Medical records of injuries
  • Copies of filed police reports
  • Reports from psychologists or counsellors
  • Personal journal or diary entries
  • Relevant financial documents
  • Screenshots of social media posts
  • Evidence of past breaches of APVO
  • Character references from individuals

Legal Requirement for Mediation

Section 21(1) of the Crimes (Domestic and Personal Violence) Act 2007 states that when considering whether to make an interim or final order, applications are to be referred to a Community Justice Centre, (CJC), for mediation unless the court is satisfied there is good reason not to do so. 

Section 21(2) outlines the factors that the court must consider in determining whether there is good reason not to refer a matter to mediation. For example, if there is a history of physical violence by the defendant, or there is harassment relating to the person’s race or religion. 

The CJC may still decline to accept the matter for mediation or terminate the mediation and refer the matter back to the court. Usually, if the case is referred to mediation, the magistrate will adjourn the matter for at least 6 weeks. If the matter is not resolved at mediation, both parties must attend on the next court date.

Costs in Unsuccessful APVO Applications

If you elect to bring an APVO application to court and it is unsuccessful, the court may order you to pay the other party’s costs. These include professional expenses and disbursements, but not court fees. An order for professional costs may be awarded to a party at the end of APVO proceedings where the court is satisfied that the other party has incurred additional costs due to the application being vexatious or frivolous.

Why BSM Lawyers?

Our highly experienced criminal team understand that being served with an APVO application is stressful. Our lawyers will represent you, carefully reviewing the application and evidence.  The criminal lawyers at Brander Smith McKnight regularly appear in the Local and District Courts and achieve excellent outcomes for our clients.

Brander Smith McKnight Lawyers are conveniently located in Sutherland, Parramatta, Sydney CBD and Wollongong.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

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