An ADVO (Apprehended Domestic Violence Order) is an order protecting a person from someone they have had a domestic relationship with.
What is a Domestic Relationship?
A domestic relationship is a marriage, de-facto relationship or an intimate personal relationship.
It can also include when persons have lived together in the same household or are related to each other, or where one party is the carer for the other party.
It also encompasses current or former partners of the protected person.
If the parties are Aboriginal or Torres Strait Islander, the definition extends to extended family or kin, in line with Indigenous kinship culture.
Who can apply for an ADVO?
A person or police can apply for an ADVO.
It is most common for Police to apply for ADVOs after they receive a report of domestic violence. This is so even if the alleged victim thinks that the order is unwarranted or unnecessary.
In these situations, you should consult an experienced domestic violence lawyer on how to get an ADVO dropped.
How long does an ADVO last?
An ADVO lasts for 12 months from the date of the date it was made final unless the court specifies another length of time.
ADVO Conditions List
ADVO conditions can prevent a person from:
- Assaulting or threatening the protected person;
- Stalking and intimidating the protected person;
- Destroying or damaging property belonging to the protected person;
- going within a certain distance from the protected person;
- attending the protected person's house;
- contacting the protected person.
There may be additional conditions attached to a domestic violence order, depending on the circumstances.
The intent is to protect a person from physical or verbal abuse, harassment, or intimidation.
If you breach an ADVO, you can be charged with a criminal offence and potentially face jail time. Pursuant to Section 14 of the Crimes (Domestic and Personal Violence) Act 2007, if the breach is due to an offence of violence, the court must sentence you to imprisonment unless there are reasons not to.
How to Get an ADVO?
You can get an ADVO by proving you fear the defendant and there are reasonable grounds for those fears.
If you are applying for an ADVO through police, you will need to:
- Contact NSW Police and speak to a Domestic Violence Liaison Officer (DVLO);
- Provide a written statement or Domestic Violence Evidence in Chief Recording (DVEC) to police that sets out the defendant's, the nature your relationship with them, and the grounds of the ADVO;
- Police will serve your application on the defendant;
- The court will determine whether the ADVO will be granted. You can speak to specialist domestic violence lawyers who can assist you with this process.
You can also make a private application for an ADVO by:
- Speaking to a specialist ADVO lawyer who can draft the application and a written statement with you. This is crucial as these documents will form the basis of the application;
- Filing the application with the appropriate Local Court. Your lawyer will be able to do this for you;
- Police will serve your application on the defendant;
- The matter will be listed at Court. If the defendant chooses to contest the ADVO, there will be a timetable set for the filing of evidence;
- The case will be listed for hearing. This will require yourself, the defendant and any witnesses to attend Court and give evidence in the witness box. You will need an experienced lawyer to cross-examine the defendant and any of their witnesses.
Defending an ADVO
If you are the defendant, you have the option of defending an ADVO application.
You can do this by telling the court on the first court date that you oppose the order.
You will then need to prove, on the balance of probabilities, at least one of the following:
- The complainant does not fear you;
- The complainant does not have reasonable grounds to fear a personal violence offence from you;
- It is inappropriate for the ADVO to be made.
In the case of a private ADVO, the applicant may be willing to withdraw their application if you agree to a written undertaking. This is a promise that you will comply with certain conditions. You can ask for the applicant to sign a written undertaking as well.
However, it is important to know that an undertaking us unenforceable. This means that if a person does not comply with the conditions of an undertaking, they will not face any penalty. However, it will make it much easier to obtain an ADVO in the future.
You can also consent to the ADVO without admissions. This means that you agree to the order being made, but do not agree with the grounds of the ADVO. An experienced criminal lawyer will be able to negotiate with police and/or the other party to amend what conditions you agree to.
It is important to obtain legal advice about the implications of agreeing to an ADVO. This is because it can affect family law proceedings and obtaining child custody rights in the future. It can also affect your right to possess firearms.
Cross applications
You can respond to an ADVO by filing a cross-application against the protected person. This involves you applying for an ADVO for your own protection.
You will have to prove to that you fear the other person and you have reasonable grounds to do so.
The court will hear both applications at the same time as the parties are the same.
Because your cross-application is a private ADVO, if you are unsuccessful you may be forced to pay the legal costs of the other party.
That is why it is crucial that you speak to a leading criminal defence lawyer before filing such an application.
Property recovery orders
A property recovery order is an order that allows you to retrieve your personal items from a location that you otherwise cannot enter.
Police will accompany you to collect the items. You will need to provide them with a specific date and time to attend the location.
Can you appeal an ADVO?
Yes, you can appeal an ADVO within 28 days of a final order being made in the Local Court.
This requires the completion of a Notice of Appeal to the District Court. You will also need to pay a filing fee. You can find the amount of the fee by clicking here.
When you file the appeal you can also ask for the ADVO to be 'stayed'. This means that it will not be in effect while the appeal makes its way through the court system.
ADVOs and Parenting Orders
An ADVO can affect family law proceedings and how much time a person can spend with their children.
If parenting proceedings are commenced in the Federal Circuit and Family Court of Australia, any allegations of family violence must be taken into account when making decisions about each party's contact with children.
Many people ask: what is an ADVO and how does it affect my time with my children?
An ADVO can prevent a person from spending time with their children, attending certain locations and even attending their child's school.
Inconsistency between Family Court and Local Court Orders
Family Court orders override Local Court orders. This is because Section 109 of the Australian Constitution sets out, "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."
This means that any order of a federal court (such as the Federal Circuit and Family Court) will prevail over an inconsistent order of a State court.
For example, an ADVO may state that you cannot approach or contact your child.
However, there may be parenting orders from the Federal Circuit & Family Court that allow you to spend time with your child between 5pm to 8pm. In this case, you would not be in breach of the ADVO by spending time with your child between those hours.
This is because the Family Court orders supersede the ADVO where there is a conflict.
Orders from the Federal Circuit & Family Court can be attached to the ADVO so that the Local Court is aware the conditions have been overridden by another order.
What is the Difference Between an AVO and an ADVO?
The main difference between an AVO and an ADVO is that an ADVO requires an allegation of domestic violence, while an AVO does not.
In fact, an AVO does not require there to be any relationship between the parties.
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.
