An AVO can affect your family law proceedings. Unfortunately, not all allegations of family violence are truthful and complainants seek to use them as “ammunition” in the family law Courts. This is why it is important to receive proper legal advice and representation when confronted with an AVO.
This blog post will explain the general process that applies to an AVO application.
1. Service of the AVO Application
The defendant is served the AVO paperwork by a Police officer, telling them to come to Court on a specific date and time.
2. The First Court Date
The defendant’s matter is listed for a “Mention”, a short hearing where the Magistrate “checks in” with the parties on how the matter will proceed. One of three things usually happens at this stage: –
a) The defendant is not present at Court present because paperwork has not been served
– The matter will be adjourned (usually 2-4 weeks) for the Police to serve the defendant the paperwork.
– If the applicant fears for their safety, the Magistrate may make an interim-AVO (a temporary protection for the applicant).
b) You were served but did not go to Court
– If the defendant has a valid excuse for not attending, the matter will be adjourned.
– If the defendant does not have a valid excuse, the Magistrate can make a final order in the defendant’s absence.
c) The defendant has been served and is at Court
At this stage, one of five things may happen: –
i) The defendant may seek an adjournment to get proper legal advice:
This is usually up to 2 weeks.
ii) The defendant can consent to the AVO “without admissions”
This means the defendant accepts the AVO without accepting the truth of the allegations. While this makes the problem “go away” in the short-term, there will be criminal consequences if you later breach the conditions of the AVO.
iii) The defendant can consent to an undertaking
This is a “promise to the Court” made in exchange for the AVO being withdrawn. For example, a promise not to intimidate the other person (or other such ‘conditions’).
iv) The defendant does not consent to the AVO
Further evidence will need to be filed in preparation for a final hearing – see (3) below.
v) The applicant can withdraw the AVO
– If a private AVO application (i.e. not brought by the Police), the Magistrate will usually allow the withdrawal if satisfied that the applicant is not being pressured and/or there are no associated domestic violence offences.
– If a Police AVO application, the decision to withdraw lies with the Police. If there are associated domestic violence offences or children on the AVO, the Police are less likely to withdraw. However, if there is no basis for the applicant to fear for their safety (I.e. if the defendant is overseas), then the Court can refuse to make the Order.
3. Preparing for the Final Hearing
In preparation for the final hearing, parties will file their individual statements of evidence. The Applicant files first and the defendant then follows in response. It is important to receive proper legal advice before submitting a statement, as this is evidence that will be used in Court. If it is a Police AVO application, the Police will serve the defendant with a brief of evidence.
4. The Final Hearing
The Applicant must prove why they fear or have reasonable grounds to fear that future domestic violence offences will occur (including harassment, stalking or intimidation). Both sides will produce evidence to the Court and are usually cross-examined (their stories questioned/tested).
