Two proceedings, one set of facts

Related criminal charges

Where police allege a domestic violence offence, an application for an apprehended violence order is often made at the same time as charges are laid. The order and the charges are separate proceedings, decided on different standards, and they can end differently.

General information, not legal advice. This page sets out how the law generally applies. It does not take account of your circumstances, and you should get advice about your own situation before acting on it. The official sources this page is written from are listed on it; where they differ from anything here, they are the authority.

Who this page is for

You have been charged and there is an application as well

If you have been charged, the criminal matter is usually the one with the most at stake. It can result in a conviction, and a conviction is the thing that follows a person. Decisions about the apprehended violence order should be made with that in mind, not the other way around.

That does not mean consenting to an order is always wrong while a charge is pending, and it does not mean contesting is always right. It means the sequence matters: what is said, what is filed, what is agreed, and when. Those choices are made once and they are hard to undo.

Whatever happens, keep complying with every condition in force, including any interim order and any bail conditions. A contravention while the substantive matters are pending adds a charge, undermines a defence, and can affect bail.

And do not attempt to resolve any of it by contacting the protected person. If a condition prohibits contact, contact is a criminal offence whoever initiates it. Approaching a witness in a criminal matter is worse again.

How we help

What the work actually is

Reading the whole brief, not just the application

The facts sheet, the statements, the charges and the grounds for the order come from the same investigation. Seen together, they often show what the police case actually is, and where it is thinner than the summary suggested.

Sequencing the two proceedings

What should be dealt with first, what should be adjourned, and what should not be said or filed until the criminal matter is further along. That planning is what to do early.

Advice on plea, with the order in view

What a plea decides, what it does to the application, and what the combined outcome looks like. You get that before anything is entered, in plain terms.

Bail conditions and order conditions together

Identifying where two sets of conditions conflict or overlap, and applying to change one where it makes the other impossible to comply with.

Negotiating with police and the prosecution

Charges are sometimes withdrawn, amended, or resolved on agreed facts, and the terms of a proposed order are sometimes negotiable at the same time. Both conversations are had properly and in writing.

Consequences beyond the courtroom

Firearms, licensing, employment, a working with children check and visa status, worked out before decisions are made rather than discovered afterwards.

Questions

Questions people ask first

If the charge is dismissed, does the AVO application go too?

Not automatically. They are separate proceedings decided on different standards of proof. A criminal charge must be proved beyond reasonable doubt; an apprehended violence order application is civil and decided on the balance of probabilities. A court can decline to convict and still make an order.

If I consent to the order, will the charges be dropped?

Consenting to an order is not a plea and does not resolve a charge. What happens to a charge is a decision for police and the prosecution. Anyone who tells you that agreeing to an order makes a charge go away is telling you something they cannot promise.

Should I tell my side of the story to the police?

Get advice first. You are entitled to legal advice before being interviewed, and what is said in an interview may be used in either proceeding, subject to the rules of evidence that apply. What helps one proceeding can hurt the other.

What do I do about the bail conditions?

Follow them exactly, and follow the order’s conditions as well, including where they overlap awkwardly. If they genuinely conflict, that is dealt with by an application to change one of them, not by choosing which to obey.

The complainant wants to withdraw the charges.

They cannot. Charges are brought by police and continued by the prosecution. What a complainant says may affect the evidence, but a request from them is not a withdrawal and it should never be relied on. Do not contact them about it.

Will I have a criminal record because of the AVO?

The order itself does not give you a criminal record; it is a civil order. A conviction for a criminal offence does, including a conviction for contravening the order. Keeping those two things distinct is the single most important thing to understand about your situation.

Can one lawyer handle both matters?

They should be handled together, because the decisions in each affect the other. What matters is that whoever advises you is looking at both files and is telling you what a decision in one does to the other.

What to bring

Bring everything police have given you, in the order you received it, including documents you think are duplicates.

The court attendance notice or charge, and the date and court on it.
The police facts sheet and any statements served on you.
The application for the order, and every page of any interim or provisional order.
Your bail undertaking and any bail conditions.
Whether you were interviewed, and whether it was recorded.
Anything seized by police, including a phone, and any receipt for it.
Messages, call records and photographs relating to what is alleged.
Your occupation, your licences, and your visa or residency status if you are not an Australian citizen.