What is an Apprehended Domestic Violence Order (ADVO)?
Despite a common misconception, an Apprehended Domestic Violence Order is not a criminal matter or a criminal charge.
Although apprehended domestic violence orders can be associated with criminal charges, they are civil in nature.
Therefore, a person cannot receive a criminal conviction in respect of an apprehended domestic violence order.
In laymen terms, an apprehended domestic violence order is an order that prohibits a person from doing certain acts in respect of another person whom they have a “domestic relationship” with.
These prohibitions are put in place with the intention of ensuring the safety and protection of the person.
The person whom the order is made to protect is known as the “Person In Need Of Protection” (PINOP) and the person who the order is made against is referred to as the “defendant”.
What is a domestic relationship?
An Apprehended Domestic Violence Order cannot be made unless a “domestic relationship” exists between the two persons.
The term “domestic relationship” is given a very broad definition in Section 5(1) of the Crimes (Domestic and Personal Violence) Act 2007 (The Act).
A domestic relationship involves a relationship arising from any one of the following circumstances:
1) A marriage.
2) A de facto relationship
3) An intimate personal relationship with the other person (whether the intimate relationship involves or has involved a relationship of a sexual nature).
4) A person who is living or has lived in the same household as the other person.
5) A person who is living or has lived as a long-term resident in the same residential facility as the other person.
6) A person who has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person.
7) A person who is or has been a relative of the person; and
8) In the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person’s culture.
However, by virtue of Section 5(2), the definition of domestic relationship extend even further than the above to also include:
Any person who has a domestic relationship of the kind referred to in (a), (b) or (c) above with the PINOP, if the defendant has also had a relationship with the PINOP of a kind set out in in (a), (b) or (c).
For example, a person’s ex-wife and the person’s new wife are deemed to have a domestic relationship, because they both have a had a relationship of a kind referred to above in (a) with the same person.
Given the broad nature of its definition, the term domestic relationship captures most of a person’s day to day relationships.
Who can apply for an Apprehended Domestic Violence Orders (ADVO)?
An application for an apprehended domestic violence order may be made by any of the following persons:
1) The person in need of protection (the potential victim).
2) A guardian of the person in need of protection; or
3) A police officer.
More often than not, applications for ADVOs are made by the police. These applications are usually in addition to the laying of criminal charges.
There are two ways in which a police officer can apply for an apprehended domestic violence order:
1) By issuing the person with a “provisional” apprehended domestic violence order; or
2) By listing an application for an apprehended domestic violence order at court (commonly referred to as a future application).
The difference between a provisional order and a future application is that the provisional ADVO takes effect immediately, whereas a future application will only have effect once the matter is determined by a court.
Police are given powers to make provisional apprehended domestic violence orders so that people who need urgent protection can be kept safe.
Police most frequently apply for provisional apprehended domestic violence orders as opposed to making future applications. That is because the law in several circumstances requires them to do so.
When can the police issue a person with a provisional apprehended domestic violence order?
It important to note at the outset that only a senior police officer (an officer with the rank of Sargeant or above) can issue a person with a provisional apprehended domestic violence order.
However, the application can be made by any police officer to a senior police officer.
Section 26 gives the police the power to issue a person with a provisional apprehended domestic violence order if the police have good reason to believe that a provisional order needs to be made immediately to ensure the safety and protection of the person or to prevent substantial damage to any property of that person.
This power is generally construed liberally, and in most instances, police would rather issue a person with a provisional ADVO than not. That is because if a domestic violence incident were to take place, the police are likely to be held at fault for failing to act.
Additionally, Section 27 prescribes several circumstances where a police officer is obliged by law to issue a provisional apprehended domestic violence order. These circumstances include:
1) If a domestic violence offence has been committed or is likely to be committed.
2) If an offence of stalking or intimidation under Section 13 of the Crimes (Domestic and Personal Violence) Act has been committed or is likely to be committed.
3) If a child abuse offence has been committed or is likely to be committed.
Generally speaking, this is not a choice and the police officer must issue a provisional ADVO if any of the above circumstances exist.
If the police officer fails to apply for a provisional ADVO, the police officer must show that there were “good reasons not to”. These reasons must also be recorded in writing.
It is important to note that the Act indicates that the fact that a potential victim of violence does not want an ADVO does not alone constitute a good reason for a police officer not to apply for the order.
A provisional order will usually remain in force until the matter is determined by a Court.
When will the provisional ADVO go to court?
If the police issue a person with a provisional apprehended domestic violence order, the police must immediately list the provisional apprehended domestic violence order at court on the next domestic violence list day (each court has a set domestic violence list day each week).
A provisional apprehended domestic violence order must be listed at Court no more than 28 days after the provisional apprehended domestic violence order was issued by the police.
What happens if a person breaches the provisional apprehended domestic violence order?
A breach of a provisional apprehended domestic violence order has the same effect as breaching an apprehended domestic violence order that is made by a court.
The person will be charged with an offence of contravening an apprehended violence order under Section 14 of the Act. We discuss this in more detail further below.
Can the provisional apprehended domestic violence order be varied?
In many cases, police add very strict conditions to the provisional apprehended domestic violence order.
This can include having the defendant move out of a shared residence and a restriction on all communication. At times, these conditions go beyond that which is necessary.
The defendant or the PINOP can therefore make an application to the court to vary the ADVO.
The court will decide whether it is proper to allow the variation based on all the circumstances of the case.
Usually, if the person in need of protection is also supportive of the variation being made the court is more likely to vary the ADVO than not.
How do I get my property if I have been given a provisional apprehended domestic violence order?
Given the nature of ADVOs, the defendant is usually removed from the property unexpectedly, leaving behind all their belongings.
A Court therefore has the power to make what is called a “property recovery order” under Section 37.
A property recovery order usually specifies a time and date for the defendant to go and collect their belongings from the shared residence.
Most frequently, property recovery orders are facilitated by the police, or if agreed, a mutual third party.
What happens when the ADVO goes to court for the first time?
Whether it is a provisional apprehended domestic violence order or a future application, the court will want to know whether the defendant wants to accept the apprehended domestic violence order or to challenge it.
If a person chooses to accept the apprehended domestic violence order, the court will then make a “final order” which will remain in force for a set period of time.
If a person chooses to challenge the making of the apprehended domestic violence order, the court will then give the matter a timetable for determination.
However, if there are also criminal charges in addition to the apprehended domestic violence order, the apprehended domestic violence order will usually follow the criminal charges without a timetable.
That is because if a person is found guilty of a “serious offence”, then the court is obliged to make a final apprehended domestic violence order whether or not the defendant chooses to accept it.
What is a serious offence ?
The term serious offence is defined very broadly in Section 40 of the Act. It includes any of the following offences:
1) Attempted murder.
2) A domestic violence offence.
3) An offence under any of the following sections of the Crimes Act 1900:
section 33, 35, 61I, 61J, 61JA, 61K, 61KC, 61KD, 61L, 61M, 63, 65, 66A, 66B, 66C, 66D, 66DA, 66DB, 66EA or 66F.
4) An offence of attempting to commit an offence referred to in paragraph (1) or (2) above.
5) An offence of intimidation or stalking under section 13.
6) An offence under the law of any another State or Territory or of another country that is similar to an offence referred to in paragraph (1), (2), (3), (4) or (5) above.
If a person pleads guilty or is found guilty of any of the above criminal offences than the Court must make a final apprehended domestic violence order for the protection of the person whom the offence was committed against.
Can I accept an ADVO without admitting the allegations?
Yes, a person can accept an apprehended domestic violence order without admitting the allegations that are made against them.
This is because apprehended domestic violence orders are not criminal in nature. Therefore, a person can choose to accept an ADVO without having to worry about the allegations being used against them in the future.
This can be very helpful in circumstances where a person does not intend on continuing their relationship with the person making the allegations.
For example, if an intimate relationship has come to an end and the defendant has no other connection or need to see the PINOP, the defendant might not want to waste time and money fighting an ADVO for a person they will never see again.
Fighting an ADVO can be a long and expensive process and it can seem entirely unnecessary if the person making the application is not someone that you want to maintain a relationship with.
Fortunately, accepting an ADVO without admissions allows a person to accept the apprehended domestic violence order without having the allegations admitted against them.
However, it is important to note that although an ADVO will not appear on a person’s criminal record, it may still have other implications. We discuss these implications further below.
What is the process if I decide to fight an ADVO?
The process will largely depend on whether there are associated criminal charges in addition to the ADVO or whether it is a stand-alone ADVO.
If there are criminal charges, and the person pleads not guilty to the charges, the ADVO will usually follow the criminal charges. This is because the outcome of the apprehended domestic violence order will depend on what happens in respect of the criminal charges.
If it is a stand-alone ADVO (where there are no associated criminal charges) then the usual ADVO court process is as follows:
1) On the first court date, the court will give the parties a timetable for the filing and serving of evidence.
2) When the matter comes back to court some weeks later, the court will then ask the parties to confirm whether they have filed and served all their evidence.
3) If all the evidence has been filed and served the court will then list the matter for a hearing. This is where the court will hear and consider all the evidence and determine the matter.
4) The court will ultimately decide to either grant the application or dismiss the application.
How will the court decide whether to grant an apprehended domestic violence order?
The first thing to point out is that it is not for the defendant to convince the court not to make the apprehended domestic violence order. It is for the applicant to convince the court to make the order.
Under Section 16 of the Act, a court may make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears any of the following:
1) The commission of a domestic violence offence; or
2) The engagement of conduct that either:
a) intimidates the person or a person with whom the person has a domestic relationship.
b) stalks the person; or
c) being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.
What is the balance of probabilities?
The balance of probabilities is the standard of proof in all civil matters. That is that the court must be satisfied on the balance of probabilities before accepting the existence of a disputed fact.
This standard can be contrasted with the much stricter standard of “beyond reasonable doubt” that applies in criminal cases.
Although the standard of proof in ADVO cases is not as high as that in criminal cases, for a court to accept that a fact has been made on the balance of probabilities, the court will still need to find that the fact was based on clear cogent evident and that it was more probable to have occurred than not.
It is important to note that the power in Section 16 is a very broad one and it allows the court a significant amount of discretion in determining whether to make the apprehended domestic violence order or not.
If the court decides to grant the application the court must then consider the terms and duration of the apprehended domestic violence order.
What type of restriction can a court impose under an ADVO?
Every apprehended domestic violence order must contain the “mandatory conditions”.
The mandatory conditions prohibit the defendant from doing any of the following to the protected person or anyone the protected person has a domestic relationship with:
1) Assault or threaten them.
2) Stalk, harass or intimidate them; and
3) Intentionally or recklessly destroy or damage any property that belongs to or is in the possession of the protected person.
Although all of the above acts are illegal whether or not an apprehended domestic violence order is in place, if a person breaches any of the above conditions not only will they be charged with the relevant criminal offence, but they will also be charged with an offence of breaching an apprehended violence order.
This will usually make the persons sentence for the offence more serious.
The court can also impose any additional conditions that the court deems necessary or desirable in the circumstances.
There is no limitation on the conditions that the court can impose, however some common prohibitions include:
- Contacting or attempting to contact the person.
- Coming within a certain distance of where the person lives or works.
- Residing with the person.
- Making attempts to locate the person.
How long does an apprehended domestic violence order remain in force?
Section 79A allows a court to make apprehended domestic violence order for as long as the court considers necessary to ensure the safety of the protected person.
Most commonly ADVO’s are made for a period between 12 months to 2 years.
Can I claim my legal costs associated with the ADVO proceedings if I win the case and the court does not grant the ADVO?
The court can order that the applicant pay the defendant’s legal costs if the court is satisfied that the application was frivolous or vexatious.
An example of a frivolous or vexatious application is one where the person has no reasonable grounds to fear for their safety and the application is made out of spite or hatred.
The court can also order that the police pay the defendant legal costs if the defendant can prove that either:
1) The police made the application knowing that it contained a matter that was false or misleading in a material way; or
2) That the police managed the case in such an unreasonable way that it is inexcusable.
The laws surrounding costs against the police in ADVO matters is very narrow and that is so that police officers are not discouraged from applying for ADVO’s.
What happens if a person breaches an apprehended domestic violence order?
Although apprehended domestic violence orders are civil in nature, a breach of an ADVO is a criminal offence under Section 14 of the Act.
A person will be guilty of an offence if they knowingly breach a specified condition in the ADVO.
However, a person cannot be guilty of breaching an apprehended violence order unless the person was served with a copy of the order or was present in court when the order was made.
In most circumstances, the question of whether a person has breached the order is a factual question as opposed to a complex legal question.
Can a person breach an ADVO if the victim contacts them?
Unfortunately, a person can breach an ADVO even if the contact is consensual and even if it is initiated by the alleged victim.
That is because the restriction only applies to the defendant and not the alleged victim.
This can and regularly does cause problems for defendants who do not realise that they are breaching the apprehended domestic violence order simply by responding to the victim.
In these circumstances, it is best to get a lawyer to contact the victim to determine whether they would like to apply for a variation of the ADVO to allow for contact to resume between the parties.
Alternatively, if you do not want to have contact with the person, it is best to have a lawyer contact the police to inform them of the unwanted contact from the PINOP.
What is the maximum penalty for breaching an apprehended domestic violence order?
The offence of breaching an apprehended domestic violence order carries a maximum penalty of 2 years imprisonment or 50 penalty units, or both.
There are several factors that the court will consider before deciding what penalty to impose for the breach. This includes the nature and circumstances of the breach.
For example a consensual contact breach is considered to be significantly less serious than a breach that involves physical violence.
Section 14(4) states that if the breach of the ADVO involves an act of violence then the court must impose a term of imprisonment unless the court determines otherwise.
If you have been charged with breaching an apprehended violence order, it is best that you get in contact with a lawyer immediately.
Our Sydney domestic violence lawyers are available 24-hours a day on 1300SILENT (1300-745-368)
What are the consequences of having an apprehended domestic violence order?
As indicated above, an apprehended domestic violence order is not a criminal offence and therefore it will not show up on a person’s criminal history.
However, the making of an apprehended domestic violence order against a person can still impact a person’s life in the following ways:
- Their ability to hold a firearms license for a period of 10 years; and
- Potentially their ability to obtain a working with children’s check.
This will be the case even if a person accepts the ADVO on a without admission basis.
Can I vary or revoke a final ADVO?
An application to vary or revoke an ADVO can be made at any time by either a police officer, defendant, or protected person.
The application must set out the nature of the variation sought and the reasons for why it is appropriate to vary or revoke the ADVO.
The court may vary or revoke the ADVO in any of the following ways:
a) by extending or reducing the period which the order is to remain in force.
b) by amending or deleting any prohibitions or restrictions specified in the order; or
c) by specifying additional prohibitions or restrictions in the order.
It is best to discuss such an application with your lawyer.
Expert apprehended domestic violence lawyers in Sydney
Our highly experienced Sydney Domestic Violence Lawyers are experts at dealing with ADVOs and domestic violence charges.
Our Sydney Domestic Violence Lawyers appreciate how important it is to fight for our clients. Our familiarity and knowledge of domestic violence laws are second to none which means that you can rest assured that you are getting Sydney’s Best Domestic Violence Lawyers on your side.
Our Sydney Domestic Violence lawyers are ready to take calls 24 hours, 7 days a week. Call us now on 1300SILENT (1300-745-368) or alternatively 0448 142 113 to get immediate legal advice.
