Key Takeaways:
- In Australia, a protection order can be made to protect somebody from physical and mental harm caused by another person.
- Protection orders have various names depending on the area of Australia, like Restraining Orders, Intervention Orders, Apprehended Violence Orders (AVOs), Domestic Violence Orders (DVOs) and Family Violence Orders.
- Protection orders can be taken out against a person you’re related to, a person you are in or have been in a relationship with, or someone who you do not have a domestic relationship with, like a neighbour.
If you’re in immediate danger, please call 000.
Protection orders are court orders that are made to protect a person from another person who may risk or threaten their safety.
You may have heard of protection orders by a wide range of other names, such as intervention orders, restraining orders, domestic violence orders (DVOs) and apprehended violence orders (AVOs).
The name of protection orders varies depending on the state or territory you are in in Australia, however, they are all created with the same purpose in mind – which is the protection of people from behaviours such as intimidation, harassment, damage, stalking, violence and abuse.
In this article, we’re going to talk about protection orders, with a focus on AVOs, including how you get them, how long they last and what happens when you breach one.
What is the purpose of a protection order?
A protection order, like an Apprehended Violence Order, essentially provides the defendant – the person the order is made against – with a set of conditions that the court deems they need to abide by. These conditions are to help to protect victims from further violence or harm.
In New South Wales, an AVO will always include several mandatory conditions, which are:
The defendant must not:
- Assault or threaten the protected person/s;
- Stalk, harass, or intimidate the protected person/s; and
- Deliberately or recklessly destroy or damage anything that belongs to the protected person/s.
The AVO can also include various other conditions that the defendant must abide by, such as not being allowed within a certain distance from where the protected person works, lives or goes to school and not being able to contact the protected persons.
Who can get a protection order?
Orders are commonly put in place for people who need to be protected from physical harm and domestic and family violence, however, they can also be put in place for people who have experienced other types of abuse, including sexual abuse, family violence, financial abuse and psychological abuse.
They can be considered for a variety of situations, including but not limited to:
- You have experienced or been threatened with physical violence;
- Someone has hurt you or your child;
- You’re being stalked, intimidated or harassed by someone;
- You have suffered property damage, including to your home, car, or even your pets;
- You have concerns about your safety due to the actions or behaviours of a certain person.
Protection orders can also be made so that they cover your children too.
How do you get a protection order?
A protection order, like an apprehended violence order AVO> can be applied for by a person who believes they need the protection and they can do so with the assistance of the police or by making an application directly to the Court.
If you plan to make a private application it’s important to ensure you understand the ramifications of doing so, as an AVO can impact a person’s life in various ways and if you’re found to not need an AVO by the Court, you may need to pay for the defendant’s legal costs.
The police can apply on your behalf upon your request and if they believe that an AVO is required. The police are also required to apply for an AVO in a number of circumstances, including:
- if a domestic violence offence has, is or is likely to be committed against you;
- if the person the order is being made against (the defendant), has recently, is currently, or is likely to intimidate or stalk you with the intent of causing harm or fear to you;
- if an offence against a child has, is or will be committed; or
- if there are proceedings against the defendant for any of the above offences.
If there is an immediate need to protect you or prevent substantial damage to your property, the police must apply for a provisional AVO.
If you think you may need an AVO we recommend speaking to a lawyer to discuss your situation or you can talk to the police. If you’re in immediate danger, we recommend contacting the police as soon as possible.
If you plan to apply for an AVO through the police, then you will need to discuss your situation with the police, make a statement providing as much information and evidence as possible, the police will serve the application and then you will be required to go to a court hearing.
What is a protection order called where I live?
As we mentioned earlier, a protection order is known by various names throughout the country and this is because each state and territory has a different criminal justice system.
The names of protection orders for each of the Australian states and territories are as below:
- Australian Capital Territory (ACT): Family Violence Order
- New South Wales (NSW): Apprehended Violence Order
- Northern Territory (NSW): Domestic Violence Order
- Queensland (QLD): Domestic Violence Order
- South Australia (SA): Intervention Orders (formerly known as Restraining Orders)
- Tasmania (TAS): Family Violence Order.
For the remainder of this article, we will use the term AVO.
Questions about AVOs
Whether you’ve had an AVO taken out against you or you’ve taken one out against someone else, you likely have some questions you need answered. Before we dive into the questions, it’s important to understand that there are two types of AVOs:
- Apprehended Domestic Violence Order (ADVO);and
- Apprehended Personal Violence Order (APVO).
An Apprehended Domestic Violence Order is for the protection of a person where they have a domestic relationship with the person, such as a partner, former partner or extended family member. An Apprehended Personal Violence Order is for when a person requires protection from a person who they do not have a domestic relationship with, such as a colleague.
Below are some of the most common questions we’re asked about AVOs.
1. Is an AVO a criminal offence?
When an AVO is made against a person, it is considered a civil matter but not a criminal charge, which means that it is not a criminal offence and will not go on your criminal record. However, breaching the conditions of an AVO is a criminal offence and could result in arrest or a notice to attend court.
An AVO will be recorded on a person’s criminal history but will only appear on their criminal record if the person breaches the order and they are charged with a criminal offence.
2. Criminal record vs criminal history
You may assume that you can use the terms criminal records and criminal history interchangeably, however, while they are related, they are not the same thing.
A criminal record is a written record of all criminal convictions a person has been convicted of.
A criminal history is essentially an overview of your involvement in offences in the legal system, including all offences you have been to court for, including those where a person has been found not guilty, where charges were dismissed, and any pending charges or court appearances. It also includes criminal record information, as well as warrants and AVOs.
3. Does an AVO show on a police check?
An AVO will usually not appear on a police check as it is not a criminal offence, and not considered to be a releasable court document. If you breach an AVO and are charged with a criminal offence, then this will appear on a police check.
A criminal record is most commonly used during a police check, while a person’s criminal history is often used by a Court to determine sentencing in a case.
An AVO could be disclosed as part of a police check in situations where the AVO is related to children. Child authorities may be advised of an AVO against someone, and this could impact employment opportunities.
4. Can an AVO impact my ability to get a job?
While having an AVO against you may not be a criminal offence, it can still have serious negative consequences on your life, including restricting your actions and your ability to work in certain sectors.
As we mentioned above, if an AVO involves orders relating to children, then this may result in certain child authorities being notified of the AVO. This could impact your ability to work with children as any work or volunteer work that is child-related involves a working with children check.
Employment in any role that involves working with vulnerable could be impacted too as this kind of work requires a Working with Vulnerable People Registration – similar to a Working with Children check.
Other types of employment that could be affected by having an AVO against you include police officers and security officer.
If you’ve had an AVO taken out against you and you work in any of these fields, we recommend seeking legal advice to discuss your options.
5. How long does an AVO last?
There is no set amount of time that an AVO will last, rather the circumstances of each unique situation will determine this. An order could be for a set period of time, like 12 months or could be ongoing for an indefinite period.
The AVO may also be altered as the situations of the protected people involved change, however, generally, they will remain in place until the protected person is considered to be safe from harm.
6. How can you find out if someone has an AVO?
At present, unless you are an employer or business conducting a police check, there is no way to find out if someone has AVO against them.
A citizen is unable to access a person’s criminal records, other than their own, and this is due to Australia’s strict right to privacy laws.
At present, in NSW, new legislation has been proposed to allow people to find out if someone has an AVO. The proposed legislation is known as the “Right to Ask Scheme” and would allow a person who may be at risk of domestic violence to apply to access information about their partner that relates to any domestic violence offences committed by the partner. Under the proposed new legislation, people would be able to apply online or via a phone line to access the information.
The biggest concern related to the Right to Ask Scheme is how this may impact a person’s right to privacy, with factors such as malicious applications being made against people and how a malicious application could be determined.
The aim of the proposed legislation is to allow people to make informed decisions about their relationships and to potentially reduce the number of instances where people are hurt or even murdered by their partner when that person has a history of domestic violence.
8. What happens if you breach an AVO?
If an AVO has been made against you, it’s extremely important that you follow the conditions of protection orders to avoid being charged with a criminal offence.
If you do breach the conditions of your AVO you could be arrested and charged with the criminal offence of contravening the AVO or with other criminal offences that relate to the actions of your breach of the interim order, such as assault.
Technically you can only breach an order if you knowingly go against something that the AVO says that you cannot do, however, it is possible to accidentally breach an AVO too. If you accidentally breach an order, for example, if you meet up with the protected person upon their suggestion and you’re not meant to contact them, this would be considered a breach, even though you didn’t initiate the contact. You need to be very careful if you have an AVO against you, so if you’re not sure if it is something you should be doing, seek legal advice immediately.
Breaching AVOs can result in arrest and a requirement to attend a court date, where you could be fined or receive a prison sentence. If your AVO breach also involves another criminal act, like property damage, you could also receive a separate punishment for that crime too. Convictions of any kind, including breaches, will appear on your criminal record, which could impact your ability to gainful employment in certain fields.
9. Can the conditions of an AVO change? Can an AVO be cancelled?
It is possible to change or cancel an AVO after it has been made and an application to do so can be made by the following people:
- The protected person;
- A guardian of a protected person;
- The person the order has been made against; or
- The Police
Applications can be made to add more orders, change conditions, extend or reduce the duration of the order, or revoke the order. It’s also important to note that if the police applied for the AVO or if the AVO is an indefinite AVO, the Court’s permission to apply for changes to the orders will be required. The Court will usually only give this permission if there have been significant changes in the circumstances since the order was made.
If the application is to revoke the AVO, this can only be done while the AVO is active and cannot be applied to any lapsed AVOs.
Before applying to make any changes to an AVO it’s important to seek legal advice. There are many considerations to be made and depending on the type of application you’re making, the legal information and the process may differ.
10. Can you contact the person you have an AVO against?
If you have an AVO against someone you may still be able to contact them, however, whether you should is dependent on the unique circumstances of your situation. The conditions or orders of an AVO are for the person the order has been made against and they are required to follow these conditions. However, if one of the conditions is that they are not meant to contact or communicate with you, by contacting them, this could lead to them breaching the order if they respond.
It’s also important to remember that you’ve taken an AVO out against a person for a reason, if you’re seen to be communicating or potentially causing them to breach the AVO, this could impact your own credibility.
How we can help you
Whether you’ve taken out an AVO or protection order against another person or you’ve had one taken out against you, it’s important that you understand the requirements of the orders, as well as your options – especially if you and the other party have children. Protection orders and family violence can make parenting complicated, however, the safety of your child is paramount and we’re here to help you today.
Discuss your situation with us today during a free consultation by calling us on 1300 667 461 or booking online using the button below.
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