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Understanding Apprehended Domestic Violence Orders

In certain circumstances you may feel as if someone is threatening your safety, or you may have already been exposed to violence, threats or harassment from an individual with whom you are in a domestic relationship with. In this situation an Apprehended Violence Order (AVO), specifically an Apprehended Domestic Violence Order (ADVO), is a recourse of action that can be taken to set certain conditions on the offending party or defendant, for your safety.

1. When can you apply for an ADVO?

A domestic relationship between you, the ‘person in need of protection’ (PINOP) and the defendant may be one where the defendant is your:

  • Ex-spouse;
  • Current spouse;
  • De-facto partner;
  • Family member; or
  • Someone living in the same residence as you.

If the person threatening your safety fits one of a domestic role in your life, you can apply for an ADVO either through the Police or privately.  This is granted in the Local Court as per the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (‘the Act’).

If you are applying for any AVO you must be over 16. If you are not, then the police can make an application for you.

2. Differentiating between Police issued and private ADVO’s.

The Police may issue an ADVO on your behalf dependent on your situation. They have the power to issue a provisional ADVO where per reasonable grounds it would be necessary due to a domestic violence offence, or the likelihood of a domestic violence offence occurring*.

Private applications for an ADVO can be made if you do not want to contact the Police. In this case you can contact your local court Registrar to apply. We recommend talking to our solicitors for legal advice before filing for one privately.

It is important to note that you may first be referred to mediation if appropriate.

3. Provisional, Interim and Final Apprehended Violence Orders

A provisional ADVO is granted by the Police in an efficient manner. These will last until they are revoked, or until the Court serves an Interim or Final AVO.

An Interim order either extends the provisional order, or is granted when an extension is necessary. This lasts until it is revoked, or a final ADVO is made.

A Final ADVO is made if:

  • the defendant does not attend court;
  • both parties’ consent to a Final ADVO; or
  • the applicant is successful at a hearing for a Final Order.

4. When will the Court grant an ADVO?

The standard of proof for the court is on the ‘balance of probabilities’. That means that if the court is satisfied that it is more likely than not that an ADVO is suitable, one will be granted.

The Court may grant an ADVO when the following conditions are met, however this is not an exhaustive list.

From Section 16 of the Act:

  • If you (the PINOP) have reasonable grounds to fear or do fear an act of domestic violence against you by the defendant; or
  • You fear that the defendant will intimidate or stalk you, or a person you are in a domestic relationship with.

Despite this, the court does not need to be satisfied that the PINOP fears such conduct if you are:

  • A child;
  • Have already been exposed to a personal violence offence by the defendant; or
  • The making of such an order is necessary to protect the PINOP from further violence.

5. Conditions applied on defendant and what happens when these are violated?

All orders granted by the court will meet these general and mandatory conditions, as per section 36 of the Act.

The defendant cannot:

  • Assault;
  • Threaten;
  • Stalk;
  • Harass; or
  • Intimidate the protected person, or any person whom the protected person has a domestic relationship with.

When the above conditions are violated knowingly, the defendant is found guilty of a criminal offence with the maximum penalty being imprisonment for 2 years or $5500.

 

*Part 10, section 49(1) of Act.
Sources used:
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Department of Communities and Justice, Getting an Apprehended Violence Order (AVO) (September, 2019)  https://www.facs.nsw.gov.au/domestic-violence/police-lawhelp/getting-an-avo
Department of Communities and Justice, Provisional and Interim Apprehended Violence
Orders (April 2021)
https://www.lawaccess.nsw.gov.au/Pages/representing/lawassist_avo/lawassist_defendingavo_home/lawassist_responding_avo/lawassist_prov_interim_final_def.aspx
NSW Bureau of Crime Statistics and Research, Apprehended Violence Orders (June, 2021)
https://www.bocsar.nsw.gov.au/Pages/bocsar_pages/Apprehended-Violence-Orders-.aspx

This article does not constitute legal advice and should not be relied as such. For legal queries, please contact us on 02 8014 5818 or email info@checkslaw.com.au.

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