The breakdown of a relationship can be a very challenging and emotional time which can cause parties to do or say certain things that cause the other party to fear for their safety. It is also not uncommon for parties who have demonstrated abusive or aggressive behaviour throughout the relationship to intensify that behaviour leading up to or during separation.
The above means that often, there becomes a criminal law overlap in family law matters and Apprehended Domestic Violence Orders, more commonly known as ADVO's, are a regular occurrence. An ADVO is a court order devised to protect someone the person in need of protection,(PINOP) from violence, abuse or threats of violence and abuse of another person whom they have a domestic relationship with (the defendant).
People often think that only physical violence can lead to an ADVO. Many clients do not realise that verbal abuse or threats of abuse are behaviours that can cause the Police to issue an ADVO for a person's protection. For the definition of family violence, and the types of behaviours it may include, please refer to section 4AB of the Family Law Act.
Many clients come to Coleman Greig for advice not only in relation to family law issues but also potential criminal law issues due to events that have either occurred throughout the relationship, at separation or after (or that have not yet occurred at all). On that last point, if you are worried about something that may not have yet occurred, but you are worried it may, it is always best to seek legal advice on the issue to ensure you are best prepared to manage it if it were to eventuate. Of course, if you have genuine fears for your safety, you should call the Police.
An ADVO where I am the protected person
It may be the case that, due to actions (or a criminal offence) of your partner or ex-partner, either the Police or you have caused for an ADVO to be issued that aims to protect you (and possibly your children) from that person. It is typical that, if the incident occurred in the presence of your children, they will be included as protected persons of the ADVO. There are 10 standard conditions that may be applicable in an ADVO (and the nature of the incident largely dictates how many of those conditions are necessary for your protection). The most common conditions are conditions that the defendant be prevented from stalking, intimidating or harassing you, not coming within a certain distance from your home or another location and not damaging your property. An ADVO can also specify that the defendant cannot contact or approach you at all depending upon the circumstances of what has occurred.
An ADVO where I am the defendant
It may also be the case that, due to actions (or a criminal offence) that you have committed (or have been alleged to commit), you have been made the defendant of an ADVO. That ADVO may be to protect your spouse solely, or your spouse and your children. Understandably, this scenario causes considerable distress for clients who are worried about the impact the ADVO may have on their family law matter and are concerned about the interplay between criminal and family law.
It is important to recognise that the Family Law Act has the power to make orders which override conditions of an ADVO to the extent that they are inconsistent. What the Family Law Act does not have the power to do however, is override Bail Conditions. For example, if a condition of your bail is that you do not reside at the former matrimonial home, then the Court cannot displace that. There are, however, ways to deal with that issue and therefore it is important that you receive the appropriate legal advice on your options from one of our Family Law Accredited Specialists.
The Family Law team at Coleman Greig can help you understand the implications of any ADVO and its effect on your family law matter. If you find yourself in a position where you are the protected person or the defendant of an ADVO, we are able to assist you with how to best navigate your family law matter in those circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.