Making a police report (for a ‘police AVO’) or filling out an Apprehended Violence Order (AVO) form (for a ‘private AVO’) can be relatively quick and straightforward. But it can potentially have far-reaching consequences for the other person.
Many AVOs are taken out during the context of a domestic relationship breakdown and unfortunately they may be done with underhanded motives, particularly if there are children involved.
But what are the consequences of being the subject of an AVO?
First, it is important to understand that an AVO is not technically a criminal offence.
Many people do not contest an AVO that has been taken out against them, and there may be valid reasons for that decision. An uncontested AVO will normally be finalised “without admissions” and there will therefore be no finding of guilt.
You can go to court on the allocated date and tell the Magistrate that you wish to “accept the AVO without admissions”, and the Magistrate will make that notation on the court papers. This will mean that the contents of the “grounds of complaint” have not been established.
So while contravening an AVO is a criminal offence, merely getting an AVO taken out against you is not.
Choosing not to defend an AVO is cheap and quick. But before agreeing to an AVO, you should think about the potential consequences upon licences such as firearms or security licences, and particularly the impact it may have upon family law proceedings.
AVOs are meant to be for the protection of the Person in Need of Protection ( or ‘PINOP’) for a police AVO or the ‘Applicant’ for a private AVO. But they can also cover anyone who lives with that person, including children. This is the case even though they do not demonstrate any proven offence. And significantly, the fact that an AVO exists is often used by the PINOP or Applicant to suggest that the other person (the defendant) is a violent or otherwise unsuitable parent, even if the defendant accepted the AVO without admissions.
For that reason, many family lawyers that act for AVO defendants will advise their clients not to consent to AVOs, and will often work with criminal defence lawyers to beat the AVO.
While some AVOs are made on legitimate grounds, many are used as a strategic manoeuvre by parents fighting over children.
Fortunately, judges in the Family Law Courts are becoming more and more aware of this, which means that an AVO will not necessarily have a heavy impact on your family law case – especially if you agreed to the AVO without admissions.
AVOs are not the only area where mere allegations can affect a child custody dispute.
In a family law court, allegations of child abuse and violence generally are taken very seriously and can lead to a parent being denied unsupervised access to their child if it is found that there is an unacceptable risk of harm.
While protecting children from abusive parents is no doubt very important, the risk that unfounded claims may be used by one unscrupulous party to achieve as much custody as possible should also be taken into account.
In a leading case of M v M, the Judge could not satisfy himself that sexual abuse HAD occurred “on the balance of probabilities” but he couldn’t rule it out either. On this basis, he deprived a father of access to his daughter after he was accused by his former wife of sexually abusing the child.
The Judge in that case decided that there was an “unacceptable risk” to the child – and didn’t make a definitive finding regarding the allegation.
When the case was appealed, the Judge’s finding was confirmed – and the law is that family law courts do not need to make a finding of guilt in the same way the criminal law courts do before they can make decisions against a party.
This seems inconsistent with the whole premise of law – decisions are supposed to be made on fact, not suspicion.
And this can have substantial implications for those merely accused of committing offences, whether those charges are prosecuted or not, and even if the person is found to be innocent.
All of this creates the unfair situation where, in the Family Court, those accused of very serious crimes do not even have to be prosecuted, let alone found guilty, for a judge to deprive them of contact with their children.
It appears that part of the problem is that dealing with serious allegations like violence and abuse are increasingly becoming a core business for the Family Law Court – although there are convincing arguments why this should not be the case.
