Understanding Apprehended Domestic Violence Orders (‘ADVO') in NSW

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Lamont Law

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Apprehended Violence Orders ('AVO') take two forms depending on the relationship between the parties.
Australia Criminal Law

In New South Wales, any allegation(s) of family and domestic violence is most often met with an ADVO, or charge(s), or both. In practice, it is the ADVO that causes the greatest amount of confusion for our clients. There are circumstances where police have the power to apply for an ADVO without the consent, or against the will of the person in need of protection.

Whilst one can appreciate the need to identify offenders as early in their offending trajectory as possible, the practical effect on families can be extraordinarily difficult. This article aims to provide an introductory explanation of AVOs, but it is not a substitute for individual legal advice that is specific to your circumstances.

What is an AVO

Apprehended Violence Orders ('AVO') take two forms depending on the relationship between the parties. As identified, this article is focused on family and domestic related violence and therefore the focus is Apprehended Domestic Violence Orders ('ADVO').

Presumably the starting point of the confusion in relation to apprehended violence orders is to be 'apprehended', ordinarily understood to be arrested, but that is not always the case. Unless you have also been charged with an offence, an ADVO should be seen as a means of intervention.

A standalone ADVO is not a criminal matter, but it sets clear rules about what the defendant cannot do. If the order is breached, it can lead to criminal charges.

The starting point is that an application is made to the court in accordance with the Crimes (Domestic and Personal Violence) Act 2007 ('the Act').

Who makes the application

Anybody can apply to the court for an ADVO if they hold concerns of family or domestic violence. You do not have to report the matter directly to police, and your loved one does not need to be subject to charges for an order to be made for your protection. However, a common misconception is that you decide whether or not to make the application.

There are certain circumstances where an ADVO can be sought on your behalf, to protect you, with or without your consent.

Section 27 of the Act provides that, unless there is a good reason not to, police must apply to the court for an order to protect you where police suspect or believe that:

  1. a domestic violence offence or an offence of stalk/intimidate, has recently been, or is being committed, or is imminent, or likely to be committed against you; or
  2. an offence of child abuse has recently been, or is being committed, or is imminent, or likely to be committed against you; or
  3. proceedings have commenced against a person for an offence of domestic violence or child abuse referred to above.

In practice, this frequently follows a report made to police whether or not you have followed through with a statement, or sought to have your loved one charged.

Subsection 4 specifically states that the reluctance of a person to make the application does not, on its own, constitute a good reason for police not to make an application on your behalf, if police reasonably believe you have been a victim of violence, or there is a significant threat of violence.

What kind of offences will give rise to an application

A domestic violence offence is defined by s 11 of the Act. The starting point is that there is (or was) a domestic relationship between the parties. Second, there was offence which constitutes a personal violence, or domestic abuse offence as provided by the Act, as well as the Crimes Act 1900. We have provided a table of offences at the bottom of this article for ease of confusion.

An offence pursuant to s 227 of the Children and Young Persons (Care and Protection) Act 1998 is also an offence subject to a mandatory police application. This is defined as 'a person who intentionally takes action that has resulted in or appears likely to result in':

  1. the physical injury or sexual abuse of a child or young person, or
  2. emotional or psychological harm of such a kind likely to significantly damage the intellectual or emotional development of the child; or
  3. significant harm to the child or young person's physical development.

A report to police containing allegations of these behaviours is sufficient grounds for police to make an application for the protection of the person(s) involved. The person does not need to be charged with an offence, or proven to be guilty before Police take this action.

What happens when Police make the application

Part 7 of the Act provides police the power to obtain a 'provisional ADVO' quite swiftly, and whether or not the court is sitting. The order must be served on you personally unless it is impractical to do so.

It will contain a direction for you to appear at court at specified date, which is expected to be not more than 28 days from the date of the application. However, failure to comply will not affect the validity of the provisional order if the failure is due to court sitting arrangements.

What happens when I am served with the order

Once you have been served with the order you need to pay particular attention to what it says. First, it will tell you when and where you need to go to court. Second, it will tell you who the protected person is; and third, it will set out the conditions which you must observe.

You should aim to seek legal advice as soon as possible to ensure you understand your obligations, and discuss any practical difficulties arising by the order before your court date. Once you appear at court, the provisional order will become either an interim order or a final order for a specified period.

Conditions of the ADVO

In every ADVO, there will be an order which specifies that you cannot do any of the following to the protected person or a person whom the protected person has a domestic relationship with:

  1. assault, or threaten;
  2. stalk, harass, or intimidate;
  3. intentionally or recklessly destroy or damage any property, or harm any animal that belongs to, or is in the possession of the protected person or a person with whom the protected person has a domestic relationship.

Importantly, you must note that the order extends to protect the relationships of the protected person without specifically mentioning them by name. This might be a new romantic relationship, or a familial relationship. For example, if you were to text your former partner with a threat directed at the new partner, you would be in breach of the order without ever having spoken to them directly.

Depending on the nature of the allegations, there may be other orders in place which range from restrictions to total prohibitions. For example, there may be an order which states that you cannot approach or contact the protected person within twelve hours of consuming alcohol or illicit substances; or an order which states that you cannot approach or contact the protected person at all.

Section 35 of the Act provides the court power to impose such prohibitions or restrictions as appear necessary or desirable to the court, to ensure the safety and protection of the person(s) or child(ren).

Can I disagree with the Order?

It is not uncommon to disagree with an ADVO being made either against you, or on your behalf. In either case you should seek independent legal advice as early as possible to ensure you fully understand your options.

If you are the defendant in an application, that is, an order was served on you and prohibits you from certain conduct, you can oppose the order, or you agree to the order being made without agreeing to any of the allegations contained within. This is to 'consent without admissions'.

If you are the protected person, and you do not agree with the conditions that police are seeking on your behalf, you can apply to the court directly. You should not do this before seeking legal advice, as there may be other implications to consider.

What happens if I consent without admissions

In some circumstances, police will apply for an ADVO in orders one only. That means, the only prohibition on you is that you do not do anything to assault, threaten, stalk or harass, or damage any property, or harm any animal that belongs to or is in the possession of the protected person or any person they share a domestic relationship with.

This is conduct which is already illegal, and in some cases there is no practical difficulty in agreeing to the order on a 'consent without admissions' basis. You should still seek legal advice to ascertain whether the ADVO may have any bearing on your employment, and it will be a good opportunity to receive advice as to whether you might expect charges later.

If you 'consent without admissions', the order will become final for a period as sought by police, or as negotiated by your lawyer, or the default period of two (2) years.

What if I oppose the order?

Before you consider opposing the order, you should first seek legal advice. There may be more convenient options, such as negotiating with police for less onerous conditions or a shorter period. If that is not possible, the matter will be decided by the court.

On the first return date, you will need to inform the court that you do not agree to the order and seek a timetable for the parties to file and serve their evidence. Police must serve their evidence on you first, and then you must serve your evidence in response. The parties must also file their evidence with the court, who will then set the matter down for hearing.

It is important to seek legal advice as early as possible, as the hearing can be determined 'on the papers' which may mean that you do not have an opportunity to call further evidence. A comprehensive response to police which is prepared by a lawyer will have better prospects of success.

Do I still have to abide by the order if I am opposing it?

Regardless of the course of action you take, you must observe the conditions of the order until it is formally withdrawn or dismissed. This is the case, even if the protected person tells you that they did not apply for the order, and they do not agree to the conditions.

This can be extraordinarily difficult for families, particularly families with children and mortgages, where police have applied for an ADVO that prohibits the parties from living together, or having contact with each other, or both. Regardless of the attitude of the protected person – you must abide by the order.

Can I vary the conditions?

Yes, an interested party can apply to the court to vary the conditions at any time. An interested party might be police, the protected person or the defendant.

Once an application is brought before the court, the court may, if satisfied that in all the circumstances it is proper to do so, vary or revoke a final order or an interim order. You should not apply to vary the order without having first obtained legal advice.

Breaching the Order

Breaching an ADVO is a serious matter which can result in criminal charges. The penalties include two (2) years imprisonment and/or a fine of $5,500. In circumstances where the breach involves an offence of violence, the law states that the person must be sentenced to a term of imprisonment unless the court orders otherwise.

If you have been charged with an offence, schedule a free consultation with Skye Nixon to discuss your options.

Personal Violence Offences

  • Murder (including conspiring and attempts);
  • Manslaughter;
  • Assaults offences;
  • Sexual offences;
  • Documents containing threats;
  • Wounding or GBH with intent and/or and/or Reckless wounding;
  • Discharge firearm with intent;
  • Choke/Suffocate/Strangle;
  • Using intoxicating substances to commit indictable offence;
  • Using poison to endanger life or inflict GBH;
  • Abandon or exposing a child under 7 years;
  • Failure of persons with parental responsibility to care for child;
  • Failure to provide necessities of life;
  • Prohibition of female genital mutilation;
  • Using explosive substance;
  • Causing explosive to be placed in or near building or public place;
  • Setting trap;
  • Kidnapping, child abduction;
  • Procuring offences;
  • Recording/Distributing intimate image(s)
  • Participator in Bugamy;
  • Breaking entering and assaulting with intent to murder;
  • Enter dwelling with intent to commit serious indictable (personal violence) offence
  • Destroy/Damage property offences inc with intent to injure and/or threats;
  • Possession of explosives with intent to destroy/damage property;
  • Stalk/Intimidate with Intent;
  • Contravene ADVO
  • Authorised access, modification or impairment with intent;

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.

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