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Private Application

Private applications for domestic or personal violence orders are made when the applicant is not a member of the NSW Police Force.  The application will need to be made in writing to a Registrar or chamber Magistrate and only if there is some merit in the application will a summons be issued by the Court requiring the defendant attend Court at a future date to reply to the application.  The drafting of the application is all important and requires expert legal advice.  An applicant should consult a lawyer before attending Court to present the application.

At the first Court date the defendant will be asked whether they consent to the Orders sought. Every defendant should get legal advice to ensure that they understand the process involved and the repercussions of either consenting to the orders or defending the application. If the matter is defended, the Court will normally make Interim Orders that operate until the matter in finalised.

Every defendant can consent to the application without admitting the allegations contained in the application. If the defendant consents without admissions the matter will be finalised and the Court will make Final Orders. The benefits are that the costs invloved are reduced and it removes the need for the parties to give evidence at a hearing. The making of Final Orders is not like the recording of a conviction and it does not become part of a person's criminal record. However, you must obtain expert legal advice before making this decision because once an Order is made any allegation of breach will result in arrest and charge and possible imprisonment.

If you do not consent the application will be adjourned to another day for a "show cause hearing". At that hearing, the Court will hear evidence and determine whether Interim Orders are necessary in all of the circumstances.

The matter will then be adjourned again for a final hearing. At that hearing all parties will need to give evidence and the Court will decide if the applicant does in fact have fears and that the fears are reasonable. This hearing is not a criminal proceeding and the Court only needs to be satisfied of matters on the balance of probabilities, not the criminal standard of beyond a reasonable doubt.  Importantly in private applications for AVO's the losing party may need to pay the legal costs of the successful party.

If the applicant alleges the defendant has breached the orders, the defendant can be charged with the offence of contravene AVO. The maximum penalty for contravening an AVO is a fine of $5,500 and a prison sentence for 2 years.

Section 14(4) of the Crimes (Domestic and Personal violence) Act states that unless the court otherwise orders, a person who is convicted of an offence of contravening an AVO must be sentenced to a jail term if the offence involved an act of violence against a person.

Lenz Legal will provide you with expert advice regarding private applications for AVO's necessary to protect your interests and reduce costs. Call us now to see just what is possible.