Breaching an Apprehended Violence Order (AVO) in New South Wales is a serious criminal offence. An AVO is a court order made to a protect a person from threats, harassment, or violence, and violating its conditions—whether knowingly or accidentally—can lead to an arrest and significant penalties.

This article will help you understand:

1. How AVO breaches occur,
2. The legal consequences involved,
3. Available defences,
4. What to expect in court.

If you’ve been charged with breaching an AVO, understanding your rights and legal options is crucial. Prompt legal advice can significantly affect the outcome of your case and help protect your future.

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What Does It Mean to Breach an AVO?

Breaching an Apprehended Violence Order (AVO) means failing to comply with any of the conditions set out in the order. Section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) makes it an offence to knowingly contravene any restriction or obligation imposed by an AVO. Importantly, a breach doesn’t require any intent to harm the protected person. Even a minor or technical breach—such as answering a text message, making a phone call, or visiting a prohibited location can result in criminal charges.

Contacting the protected person through a third party, like a friend or family member, can also amount to a breach. Penalties for breaching an AVO can be serious, including fines and imprisonment. The law prioritises protection, so any violation is treated seriously, regardless of the accused’s intentions.

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Common Scenarios That Lead to AVO Breaches

You do not need an intention to breach an AVO, in fact in most cases what constitutes as a breach is often a minor or “harmless” action, this can includes common scenarios such as:

• Replying to a text message from the protected person,
• Attending a shared event without knowing they’re present,
• Driving by the protected person’s home or work location.

It is important to note that accidental or unintentional contact is still considered as a breach and can result in criminal consequences.

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What Are the Penalties for Breaching an AVO in NSW?

Maximum Penalties Under NSW Law

Section 14 of the Crimes (Domestic and personal violence) Act 2007 (NSW) makes contravening an AVO an offence punishable of a maximum sentence of 2 years imprisonment and/or a fine of up to $5,500. Harsher penalties can apply depending on specific circumstances of the breach, things that can aggravate the offence can include whether the breach was of a violent nature, firearm in use, property damage, threatening words, etc.

Will I Get a Criminal Record?

Courts take breaches extremely seriously, especially when the breaches are continually. Although being served with an AVO against you isn’t a criminal offence, a breach is, and can result in you being convicted and having a criminal record. If you breach the AVO, the breach becomes a criminal offence, which will appear on your record and may negatively impact employment, travel, and future legal matters. Even without a breach, the existence of an AVO can sometimes affect family law proceedings or your ability to enter certain professional roles.

It is rare that Courts will dismiss the breach entirely without recording a conviction, the matter needs to have significant mitigating circumstances which support for a non-conviction penalty.

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Can You Go to Jail for Breaching an AVO?

The answer is Yes. Although an AVO itself is not a criminal conviction or a finding of guilt, breaching the order is a criminal offence and can lead to a term of imprisonment. In majority of cases, it is often rare to find that a person gets sentenced to a term of imprisonment in relation to a simple, non-violent breach. Section 5 of the Crimes (Criminal Procedure) Act 1999 (NSW) makes it necessary for a Judge or Magistrate to consider all other possible alternatives or penalties before sentencing anybody to a jail.

Factors which can aggravate a breach of AVO include:

• Nature of the breach,
• Prior criminal history,
• Whether the breach repeated or accidental,
• Whether the accused is facing domestic violence related charges.

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Legal Defences to Breaching an AVO in NSW

No Breach Occurred

In some cases, the alleged conduct may not meet the legal definition of a breach of an Apprehended Violence Order (AVO). A breach is dependent on the specified conditions of the AVO, for example, visiting a location not listed on the AVO or communicating in ways that do not violate the specific terms of the order do not constitute a breach. If the accused has not engaged in the prohibited conduct outlined in the AVO then there is no breach. This defence can be effective if the alleged violation doesn’t align with the AVO's conditions.

Lack of Knowledge or Understanding

A key defence to breaching an AVO is lack of knowledge. If the accused was not properly served with the AVO or was unaware of its existence, they may not be legally responsible for a breach. In some cases, the individual may have received the order but did not understand its conditions due to vague or confusing language. For instance, if the order was mailed to the wrong address or explained poorly at the time of service, the court may find there was no informed breach. Demonstrating that the breach was not willful can be a valid defence in these situations.

Accidental or Unintentional Contact

Not all breaches of an AVO are deliberate. Accidental or unintentional contact can occur without any intent to violate the order. For example, if the accused unknowingly visits a location where the protected person is present or sends a message as part of a group communication without intending direct contact, this may not qualify as a deliberate breach. Courts consider the circumstances, including whether the contact was unavoidable or brief. Proving a lack of intent and that reasonable steps were taken to comply with the order can support this defence and potentially lead to charges being dismissed.

Contact Initiated by the Protected Person

If the protected person initiates contact, this can be used as a partial defence in breach proceedings. For example, if the protected person calls, texts, or invites the defendant to meet, and the defendant responds, the context may be relevant to the court’s consideration. However, it is important to understand that even if the protected person initiates contact, the AVO remains in force, and the accused can still technically breach it. In such cases, the defence may focus on the voluntary nature of the interaction and the lack of intent to intimidate, harass, or cause harm.

Other Defence Strategies

Beyond the more common defences, various other strategies may be available depending on the specifics of the case. These can include challenging the evidence presented by police, highlighting procedural errors in how the AVO was issued or enforced, or arguing that the conduct in question was misrepresented or exaggerated. Each situation is unique, seeking legal advice early in the process is essential. An experienced criminal defence lawyer can assess the circumstances and build the strongest possible defence tailored to the case.

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What Happens When You’re Accused of Breaching an AVO?

How a Breach Is Reported or Investigated

A breach of an AVO is typically reported by the protected person, but third parties such as neighbors or family members may also contact police. Once a report is made, police investigate the circumstances by interviewing those involved, reviewing any available evidence (such as messages, CCTV footage, or witness statements), and determining whether the alleged conduct constitutes a breach. If the evidence supports the allegation, police may take further action. The seriousness of the breach, history of prior incidents, and the perceived risk to the protected person all influence whether police proceed with charges or take other protective measures.

Arrest or Court Attendance Notice

When police decide to take action for an alleged breach of an AVO, they may arrest the accused on the spot or issue a Court Attendance Notice (CAN) to appear in court at a later date. Arrest is more likely in serious cases, especially where there is an immediate risk to the protected person or a history of breaches. In less urgent situations, a CAN may be issued, giving the accused notice of the court date and details of the charge. Both processes initiate formal legal proceedings, and it's crucial to seek legal advice immediately following either event.

Bail Considerations

After being charged with breaching an AVO, the accused may be held in custody and brought before a court to determine bail. Courts assess whether the accused poses an unacceptable risk to the protected person, considering factors such as prior breaches, the severity of the allegation, and compliance with past bail conditions. Bail may be refused if the court believes the accused could reoffend or interfere with witnesses. Conditions can be imposed to mitigate risks, such as restrictions on communication or movement.

First Court Appearance

Your first court appearance in the Local Court is typically referred to as a “mention.” At this stage, the magistrate will ask how you wish to proceed—whether you intend to plead guilty, not guilty, or seek an adjournment to obtain legal advice or prepare your case. You may also apply for a bail variation if your current bail conditions are too restrictive. It’s important to understand that decisions made at this stage can impact your case significantly. Having legal representation ensures your rights are protected and that you receive clear guidance on the best course of action.

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What If the Breach Wasn't Real or Was Misreported?

Sometimes, a protected person may falsely report a breach of an Apprehended Violence Order (AVO), whether due to misunderstanding, miscommunication, or malicious intent. While police are required to investigate all alleged breaches, they can only lay charges if there is sufficient evidence to support the claim. This means that accusations must meet legal standards before progressing. If you believe a breach has been wrongly reported, you can challenge the allegation using evidence such as surveillance footage, text messages, call logs, or witness statements. These can be crucial in disproving false claims. It's important to know that the legal system allows for the defence of unfounded accusations, and a skilled criminal defence lawyer can help protect your rights and ensure the truth is brought to light. False complaints are serious and can be addressed through proper legal channels.

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How Faraj Defence Lawyers Can Help with an AVO Breach

If you’re facing an AVO breach allegation, Faraj Defence Lawyers can provide the strong legal support you need. Our team will carefully review the evidence against you, assess whether a breach has actually occurred, and develop a strategic defence tailored to your situation. We can also negotiate with police or prosecutors to clarify or modify AVO conditions where appropriate, aiming to reduce the impact on your daily life.

We understand how stressful and confusing these matters can be. AVO breaches can carry serious consequences, including criminal charges and penalties, so having an experienced criminal defence team in your corner is crucial. Whether you’re dealing with a misunderstanding or a complex legal issue, Faraj Defence Lawyers will guide you through the process and fight for your rights in court.

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