New South Wales - Apprehended Violence Orders
Can I protect myself from violence or harassment?
If you fear violence or harassment from your husband or partner, you can take steps to protect yourself by applying for a protection order from a local court or a Federal Magistrates Court or a Family Court. The best form of protection order you can get is from the local court.
What is a protection order?
Protection orders (called Apprehended Violence Orders in New South Wales) are orders made under State or Territory laws that provide a quick and flexible method of obtaining legal protection from many forms of violence, for example:
The local courts can make an “Apprehended Violence Order” (called “AVO” for short).
This is a restraining order, which orders the violent person to stay away from you, your home and/or your workplace. As a general rule, an AVO will stop the violent person from continuing to harass you. No one can guarantee that it will work but facing the violence by yourself is very dangerous.
There are two types of Apprehended Violence Order:
Who can apply?
You can apply for an Apprehended Violence Order against a person if you can show that you fear:
How to apply
An application can be made to a Local Court by:
In some cases the police must make the application, for example, for children under 16 years and in certain circumstances involving violence against women.
If you called the police for help, then the police can apply for an AVO for you. The police prosecutor would then go to court to ask the magistrate to give you an AVO. You will still need to go to court to tell the magistrate why you need protection.
How do I get a protection order from the Local Court?
You can apply for your own AVO yourself or the police can apply for you. If you apply yourself, the chamber magistrate at your local court can prepare the Summons for you for free. You must explain to the chamber magistrate that you are afraid of violence or harassment and tell him or her what has happened that makes you afraid. The Summons will order the violent person to come to court. If you need protection straight away, you can ask the chamber magistrate to help you get an interim AVO that will last until the case comes up for hearing.
On the day the violent person comes to court you need to come as well and tell the court why you want the order. You must tell the magistrate in court that you are afraid of the violent person and point to particular acts of violence and/or threats of violence that have happened that make you afraid this person will be violent to you in the future.
The order the magistrate makes will vary depending on your circumstances. It may say that the violent person must not:
Chamber Magistrates at local courts can help you make the application for an AVO.
Many local courts now have Court Support Schemes in place so that you can go to court on a particular day and get the assistance of a free lawyer in court to get your AVO. Call your local court to find out whether it has a Court Support Scheme or not. If not, it is probably worthwhile to go to one that does have one if you do not have a lawyer.
Women on low incomes or receiving a Centrelink benefit should be able to get Legal Aid.
Types of order
Various orders can be made. For example, an order can:
The order can be written to suit your situation.
Violence of any kind is a crime and should be reported to the police. The police do not always charge offenders with assault or some other crime. But making the report will help you get your AVO.
Stalking is also a crime and should be reported to the police.
Many police stations now have Domestic Violence Liaison Officers who should be helpful and understanding of your situation.
If police come to your home as a result of violence they are able to get a temporary AVO immediately over the telephone to protect you until you can go to court.
Police may also take any firearms away from the violent person.
If the violent person is on bail for assault or some other crime, you can ask that he be made to report to a police station far away from where you and the children live. It is important to report the violence you suffer to the police.
If you have difficulty with the police contact the Domestic Violence Advocacy Service for assistance. (link to Domestic Violence Advocacy Service - state resources page – NSW)
The Domestic Violence Advocacy Service specialises in this area and offers free telephone advice on how to protect yourself and your children.
Can my children be protected too?
You can ask that your children be included as protected persons on your AVO. Children over 16 years old can make their own application for an AVO. Police can make a separate application to obtain an AVO for children under 16 years of age.
You will be given a copy of the order, and the police will keep a copy of it on a central computer. The order stays in place for the period set by the court, usually two years. If you still fear violence after that period you should reapply for a new order. It is always better if you apply for an extension of time on the order before it expires.
If things change, you can apply to the court to have the order altered.
If the violent person disobeys the order, the police can arrest him immediately and charge him with breaching the order.
Breaching an order
The order is a civil order but breach of an order may be a criminal offence. Contact the police if there is breach of this order.
AVOs and child contact
Where there is an Apprehended Violence Order (AVO) in place, or one is needed, difficulties can arise for people who also have residence/contact orders through the family law system. If the Family Court makes a residence/contact order that conflicts with an AVO, the residence/contact order takes priority. The AVO will still stand, but any part that is inconsistent will be over-ruled by the residence/contact order.
For example, if you have a contact order that gives the father contact on weekends but the AVO only allows contact between the father and child on Saturday, you have a conflict about contact on Sunday. The contact order will over-rule the AVO and contact will happen for the entire weekend.
This situation can weaken the AVO and also make it more difficult for the Police to enforce.
Apprehended Violence Orders can be modified by the court to take into account the practical arrangements for contact. Alternatively, contact orders can be made to take into account AVO's, for example, by arranging for an independent person to be present during contact hand-over times.
A magistrate cannot usually make orders about children in relation to residence, contact and specific issues if there is any dispute between the parents. However, if a Woman applies for a protection order or a variation of her protection order, then the magistrate may at the same time make or vary the terms of her existing Family Court contact order to make it safer for her and the children when contact takes place. The magistrate can also discharge or suspend an existing Family Court order, if among other things, the magistrate is satisfied it would be too unsafe for the Woman or her children if contact continued.
If you have Family Court contact orders in place before you have a domestic violence protection order, try to seek legal advice about whether these laws apply to you before you apply for your protection order.
You May also want to check The Australian government attorney general's department website http://www.familylaw.gov.au/accesspoint/ (search 'protection orders') As some States are currently reviewing protection orders. (Specifically WA and Tas as of June 2004).