You may apply for an AVO yourself, or the Police may apply on your behalf. The Police are obliged to apply for an AVO where they suspect or believe a domestic violence offence has been, or is likely to be, committed.
When the Police bring an Application for an AVO on your behalf then the Police Prosecutor must represent you in Court. You are not entitled to have your own private lawyer appear for you.
You can apply for an AVO yourself by lodging a complaint with a Clerk of a Local Court. The clerk will prepare a summons containing details of the Orders you seek and the incident causing you to have fears for your safety. The Application will be listed in Court and a copy served on the Defendant. You may represent yourself or have a private lawyer appear for you. The Police Prosecutor will generally not appear unless Police have been involved.
Orders can be made by consent at the first Court date. If the Defendant does not consent to the AVO, the matter will be set down for hearing at a later date. At the hearing, evidence will be given by each party and any supporting witnesses.
Defending an AVO
You may choose to consent to the Orders sought (or different Orders agreed to by negotiation) without admitting the allegations made by the Applicant.
An AVO however has serious consequences (see below) and you should only consent after careful consideration. If you do not consent to the Orders sought, the matter will proceed to a hearing. At a hearing, you are entitled to give evidence and cross-examine the Applicant. You are entitled to be represented at Court by a lawyer.
Consequences of an AVO
The making of an AVO does not constitute a criminal offence. A breach of an AVO if proved however is a criminal offence (regardless of whether the particular incident that gave rise to the breach is itself a criminal offence). A report of an alleged breach of an AVO will result in arrest and criminal charges being laid. Unless the Defendant pleads guilty, a Court will need to determine whether the AVO was breached or not.
Depending on the terms of the AVO, the order may restrict the Defendant spending time with their children. A Court Order allowing time spent between a parent and child will prevail over an AVObut only to the extent that the Court Order is inconsistent with the terms of the AVO. Therefore terms of the AVO that are not inconsistent continue to be in force.
An AVO sought by a Police Officer for the protection of children could restrict the Defendant from obtaining or remaining in employment in any child related fields.
An AVO may also restrict the ability of the Defendant to attend counselling and mediation with the Applicant.