An AVO hearing is sometimes called a ‘show cause’ hearing. The protected person must show why, on the balance of probabilities (that is, more likely than not), they fear and have reasonable grounds to fear future domestic violence offences occurring, or future harassment, molestation, intimidation, or stalking.
If the protected person is under 16 years of age or has an intellectual disability it is not necessary to prove that they are actually afraid of future domestic violence. An AVO can also be made without proof of the protected person’s fear if the magistrate is of the opinion that:
- the defendant has committed a previous personal violence offence against the protected person
- there is a reasonable likelihood that the defendant will commit a personal violence offence against the protected person, and
- the making of an order is necessary in the circumstances to protect the person from further violence.
At the hearing, the magistrate will listen to the protected person’s evidence of why they have fears. The protected person may then be cross-examined (asked questions by) the defendant’s solicitor or by the defendant, if they are representing themselves. The magistrate will also hear the defendant’s version of events and then the police prosecutor, or the protected person or their solicitor, if it is a private AVO application, can cross-examine the defendant.
In making a decision, the magistrate will consider all the evidence. Evidence can include the application for the AVO, statements, verbal accounts of incidents given by witnesses, and documents or things such as phone records, medical reports, emails and text messages or letters.
If a person’s main language is not English, it is important to consider using an interpreter in AVO proceedings. Court proceedings can be stressful and confusing and sometimes it can be useful to use an interpreter even if a person understands and speaks English as a second language in their daily life.
Most courts will allow an accredited interpreter to assist if it is required and interpreters in AVO matters are made available by the court free of charge. A female interpreter can be requested although availability cannot be assured. Auslan (Australian Sign Language) interpreters can also be used for people with a hearing or speech impairment. Family members or friends cannot be used as interpreters in court. At the application stage, it may be appropriate to use the Translating and Interpreting Service which can provide qualified interpreters free of charge.