What to do if an Apprehended Violence Order is breached
While there is an Apprehended Violence Order (AVO) in place against the defendant they must comply with the orders in the AVO. If they don't, they may breach their AVO and be charged with a criminal offence.
If you believe the defendant has breached their AVO, you should tell the police.
If you have immediate concerns for your safety, you should call the police.
Breaching an Apprehended Violence Order
It is a criminal offence to breach an Apprehended Violence Order (AVO).
A defendant breaches an AVO when they knowingly do something that the AVO says they are not allowed to do.
If the defendant breaches the AVO by disobeying the orders, you should report the breach to the police as soon as possible. The police have the power to arrest the defendant and charge them with the criminal offence of contravening the AVO (breaching the AVO).
If the defendant breaches the AVO by committing a crime, the police may also charge the defendant with other criminal offences, such as assault or malicious damage. This will mean that the defendant will have to go to court to answer the criminal charges.
The defendant can't be charged with breaching an AVO if they were not served with the Provisional, Interim or Final AVO (unless they were in court when the order was made). This means that a defendant can't breach the AVO if they don't know it has been made.
From 25 November 2017 all Domestic Violence Orders (DVOs) are automatically nationally recognised and enforceable. This means that NSW Police can enforce DVOs made in other Australian states and territories. Other states and territories can also enforce NSW ADVOs.
From 25 November 2017 a registered foreign order will automatically be recognised in other states and territories.
If a defendant breaches a DVO, NSW Police will check that:
there is a nationally recognised DVO
the DVO is current
the conditions that relate to the report of the breach
either one or both parties was in NSW at the time of the alleged breach.
If the defendant is not in NSW when the order is breached, NSW Police may refer the incident to the jurisdiction where the defendant was located at the time of the breach for further investigation.
Penalties for breaching an Apprehended Violence Order
If the defendant has breached an Apprehended Violence Order (AVO), they may be arrested and charged with the offence of contravening the AVO. The police will give the defendant a Court Attendance Notice and they will have to go to court.
If the Court convicts the defendant they can be fined up to $5,500 and/or imprisoned for up to two years.
If the defendant commits a serious breach or there are other criminal charges the police may:
- release the defendant on conditional or unconditional bail, or
- refuse the defendant bail and keep them in custody.
If the defendant is convicted of breaching the AVO and committing a crime, they can receive a separate sentence for:
- breaching the AVO, and
- any crime(s) they are convicted of.
If the breach involves violence, it is considered a serious offence and there is a strong chance the defendant will go to gaol.
Any conviction will appear on the defendant's criminal record and in a Working With Children Check.
A defendant could breach an Apprehended Violence Order (AVO) even when they have no intention of doing so, for example, if the defendant enters a building without knowing you are there. If you are not sure whether the defendant is breaching an AVO you should call the police.
If the defendant accidentally breaches the AVO, the police may decide to charge the defendant with contravening an AVO. However, a defendant can't be found guilty of contravening (breaching) an AVO unless they knowingly did something that an AVO says they are not allowed to do.
If an AVO has been made and you get back together with the defendant or make contact with them, they may still be breaching the AVO. If your circumstances have changed and you no longer need the AVO, you can make an application to vary the AVO. If there are children under the age of 16 years named on the AVO, only the police can make an application to vary an AVO. For further information, see Varying (changing) or revoking (cancelling) an Apprehended Violence Order.
Keeping a record of all breaches
If the defendant breaches the Apprehended Violence Order (AVO) you should call the police.
You should also:
- get medical treatment, if you are injured.
- record the details of all breaches in a diary, including the date and time of each breach, what the defendant did or said, and the names of any witnesses.
- keep any text messages, emails, voicemail messages or other messages from the defendant. These can be used as evidence later if the matter goes to court.
- collect any further evidence of the breach. This may include taking photos of any injuries or property damage that you have suffered or getting a copy of medical reports or CCTV footage that shows the defendant breaching the order.
Case study - Daniel and Lino and breach of an Apprehended Violence Order
Lino has an Apprehended Domestic Violence Order (ADVO) against Daniel for two years. The ADVO says that Daniel must not:
1.a. Assault, molest, harass, threaten or otherwise interfere with the protected person or a person with whom the protected person has a domestic relationship,
b. Engage in any other conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship,
c. Stalk the protected person or a person with whom the protected person has a domestic relationship.
4. Go within 200 metres of the premises where the protected person may from time to time reside or work, or other specified premises.
Over the last month, Lino has noticed Daniel standing across the road, watching his house. Last night, Lino thought he saw Daniel in his front yard and he called the police.
The police found Daniel hiding in Lino's neighbour's yard.
In this case, the police can arrest Daniel for breaching conditions 1 and 4 of the ADVO. The police may charge Daniel with a criminal offence, and he will have to go to court. If Daniel is convicted of the offence he can be fined or imprisoned or both. The conviction will be included on his criminal record, and will appear in a criminal record check.