“Can’t the PINOP just withdraw the AVO?”
As criminal lawyers this is a question we get all the time. It’s not always possible for a Person in Need of Protection on an Apprehended Violence Order to withdraw or cancel AVOs. Often, once the Police are called it’s too late.
What is an AVO?
An Apprehended Violence Order, or AVO for short, is an order that restricts the behaviour of a person for the protection of another person. The most common kind of AVOs are applied for by the Police, for the protection of someone else. AVOs can also be applied for by individuals.
The person whose behaviour is being restricted is known as the defendant. The other person in the AVO is known as the Person in Need of Protection or PINOP for short. PINOPs often don’t apply for their own AVOs. Police tend to be the Applicants.
There are a number of conditions that can be on an AVO that restrict a defendants behaviour. These conditions include preventing a defendant from contacting a protected person, not going within 100 meters of the PINOPs house and not consuming alcohol within 12 hours of seeing the PINOP. These are just 3 of the possible 11 conditions that can come on an AVO.
What if the PINOP doesn’t want the AVO anymore?
If the AVO was applied for by an individual, then it can easily be withdrawn by the applicant. But when an AVO is applied for by Police it cannot be withdrawn just because the PINOP does not want it as the PINOP is not the applicant.
If a PINOP in a Police application doesn’t want the AVO or wants to vary the conditions on the AVO, then they need to make an application and have it heard by a court. The court will consider the view, fears and wishes of the PINOP as well as the views of the Police.
Lodging an application doesn’t guarantee success though, and in most cases the PINOP will have to give sworn evidence at court.
The reality in a lot of Police AVO applications is that the PINOP has little to no control over what happens to the defendant and if the AVO is withdrawn.
Why do Police apply for AVOs?
- they suspect or believe that a domestic violence offence has occurred;
- they believe or suspect that a domestic violence offence will occur or is imminent;
- they suspect or believe that a child/young person abuse offence has occurred;
- they believe or suspect that a child/young person abuse offence will occur or is imminent;
- they have good reason to believe an AVO needs to be made immediately to ensure the safety of a person or their property.
An AVO will almost always follow where a defendant is charged with a domestic violence offence. If a defendant pleads guilty or is found guilty to that offence, the court will usually have a positive obligation to make a final AVO.
The Police can apply for an AVO even if the PINOP tells the Police they don’t want the AVO. They can also apply for an AVO if the PINOP does not provide a statement to Police.
What if the PINOP is Breaching the AVO?
A protected person, or PINOP, cannot breach an AVO. An AVO is an order that only restricts the behaviour of a defendant – for the protection of someone else.
Just because someone is a PINOP doesn’t mean that they can harass, stalk or intimidate a defendant. That is a criminal offence. A defendant is entitled to report any criminal offence committed against them.
What if the Defendant is Breaching the AVO?
If a defendant is breaching an AVO they can be charged with a criminal offence. The maximum penalty for breaching an AVO is a period of imprisonment not exceeding 2 years and/or a fine of up to $5,500.
If an AVO is breached with an act of violence then the court must consider imposing a sentence of full time imprisonment. as a starting point.
A PINOP cannot consent to an AVO being breached. Many PINOPs and partners fall into a trap of thinking it’s okay as long as they feel safe, but this is not the case and the court does not view it like that. Once an AVO is Provisional, Interim or Final the defendant has an obligation to comply with it no matter what.
What to do if you’re served with an AVO
Before court you should speak to an experienced criminal lawyer. Getting the right advice in a timely manner is crucial. AVOs can have serious consequences on other aspects of your life. Consenting to an AVO may not always be the best course of action as this can lead to breaches and criminal charges.
You can find more information about the AVO court process on our website. We are experienced in defending AVO matters and providing advice. We also provide advice and representations to PINOPs, when it is appropriate.