The Court Appearances

The First Mention

The first time you go to court is for a mention. A couple of things will happen there. The magistrate will ask you whether you:

• agree to the order, or
• do not agree, or
• consent without admissions

If you consent without admissions, you agree that the Court can make an AVO, but you do not admit that you did what you are accused of. If you agree or consent without admissions, an AVO will be made straightaway.

Benefits to consenting to an AVO

• The matter is normally finished there and then;
• Save on legal costs;
• No need for a formal hearing where relatives / partners are cross examined;
• An AVO itself is not a conviction and therefore will not give you a criminal record.

However, you need to carefully consider the consequences of an AVO being made against you. You should read the consequences page of this site for information on the consequences that may flow from having an AVO made against you.

If you consent

The magistrate will ask the protected person which orders they are seeking as final orders. The protected person can ask for additional orders than those that may be in the original application or part of any interim or provisional order. It is important therefore to listen clearly to what orders the protected person is seeking. If you do not agree with any changes you need to let the court know.

If this does occur you can ask the court for time to think or to discuss the orders with the police or prosecutor. If you find yourself in this position you can call us on 9261 4555 and we can give you some free telephone advice or arrange urgent representation for you.

If you do not consent

If you do not agree to an AVO being made against you the magistrate will normally set a date for a hearing. Sometimes there may be another mention before a hearing date is set to allow you to seek legal advice, or for another legal reason.

It is common for a Magistrate to make an interim order or continue a provisional order. You will normally be asked whether you consent or not to the making of the interim order. If you do not agree the court will ask you the reasons that you are opposing the interim order. The court may allow you to cross examine the protected person about the fears that they claim to have, but they will not normally allow thorough cross examination.

If you do oppose the making of an interim order the court is likely to stand your matter in the list until the end of the day when it has time to consider whether to grant the interim AVO or not. It is our experience that if the complaint involves actual violence or a threat of violence the court is likely to make an interim order until the matter can be finally determined.

The hearing

If you did not agree to the AVO at the first court appearance, you will be called back for a hearing. At this court appearance, the magistrate examines the evidence before making a decision about the AVO. The magistrate will hear evidence from both sides and any witnesses from each side. Evidence is usually presented in this manner:

• Evidence-in-chief: The Police Prosecutor representing the Police will call witnesses to prove that an AVO is necessary.
• Cross-examination: After the Police Prosecutor has finished asking the witness questions, you or your solicitor can cross-examine the witness by asking them questions to discredit their story or show they are mistaken.
• Re-examination: After you or your solicitor finish cross-examining the witness, the Police Prosecutor is allowed to clarify any answers in re-examination by asking further questions. After all Police witnesses have given evidence, the Police Prosecutor will close the Police case.

Your case (version of the story) will then be presented. If you intend to give evidence, you would normally give evidence first, before calling any other witnesses. Your solicitor will ask you questions to guide you in giving all relevant evidence. The same procedure of questioning will happen as in the Police case.

The magistrate's decision

Ultimately, the protected person must show the court why an AVO should be granted. The magistrate must be satisfied that:

• the protected person has reasonable grounds to fear and in fact does fear that you will commit a personal violence offence against them, or you will engage in conduct to intimidate or stalk them, and
• such conduct is sufficient to warrant the making of an order.

Although an AVO hearing is similar to a hearing for a criminal offence, it is not a criminal proceeding. The protected person only needs to prove their case on the balance of probabilities (more probable than not). This is a lower standard than beyond reasonable doubt.

If the court finds that the protected person has not proven their case the AVO application will be dismissed.

If the court finds that the protected person has proven their case it will make final orders. A final order can be made for as long as the court believes is necessary to ensure the protected person's safety.

What happens if the protected person does not turn up to the hearing?

• The court can still hear and decide the case on that day. The police may have other evidence that they can rely upon to obtain a final AVO.
• The court may issue a warrant for the protected person and adjourn your matter for further mention or hearing on another date. The court is more likely to issue a warrant where there is an allegation of actual violence and where the protected person has been subpoenaed to give evidence.
• The court can dismiss the AVO application.
• The case can be adjourned to another date so that police can try to get the protected person to court, although the court does not issue a warrant.

You can appeal

It is possible for you to appeal to the District Court against the magistrate's decision to make an AVO against you.

However, if you consented to the AVO in the first court appearance (the mention), you will need the District Court's permission in order to appeal.

If you have any questions or require legal representation call us today on 9261 4555 and speak with a lawyer who specialises in AVO hearings.