AVOs and Family Law – FAQS

What is the difference between an ADVO and an APVO?

Apprehended Domestic Violence Order (or ADVO) – An Apprehended Domestic Violence Order is an AVO that is in place where the Person in Need of Protection (PINOP) and the defendant are or have been in a domestic relationship.

The term “domestic relationship” is defined in section 5 of the Crimes (Domestic and Personal Violence) Act 2007 and includes relationships that go beyond married couples, de facto relationships and children of those relationships. The definition also includes people that are or have been in an intimate relationship and even people that have simply lived together.

Apprehended Personal Violence Order (or APVO) – An Apprehended Personal Violence Order is an AVO that is in place where the Person in Need of Protection (PINOP) and the defendant are not and have not been in a “domestic relationship”

Relevantly, in family law proceedings, ADVOs are the most common form of AVO that can have an impact on the proceedings, particularly in child custody disputes.

Who can make an Application for an AVO?

In New South Wales, anyone 16 years and above can make an Application for an AVO for their own protection and a police officer can make an Application for an AVO for the protection of any member of the community. A legal guardian of a person (pursuant to a Guardianship Order) can also make an Application for the protection of that person. It must be noted, however, that only a police officer can make an Application for an AVO for the protection of a child under the age of 16.

In domestic settings, where a person makes a complaint to police of matters that, if were true, could amount to the Court granting an AVO, it is typically the police who will make the Application on behalf of that person. Therefore, when ADVOs are relevant in family law proceedings, the Applicant is almost always a police officer.

Where criminal charges are laid in domestic settings (such as domestic assault charges), the police almost always have to make an Application for a Provisional AVO as well. In any event, once the charges are before the Court, the Court must make an interim Order which stays in place until the criminal proceedings are finalised. If the criminal charges are then proved, an AVO must then be made final, unless a Final AVO was already in place.

What is a Provisional AVO?

A Provisional AVO is an AVO that is applied for by a police officer and granted by an authorised officer (a Magistrate or Local Court Registrar) or a senior police officer. This is an AVO that is applied for on an urgent basis and granted and enforceable prior to the Application going before the Court. Historically, police officers would make Applications for Provisional Orders to Registrars or Magistrates, over the phone. Amendments to legislation then included senior police officers, which now means that Provisional Orders are applied for and granted more frequently and with relative ease. A Provisional Order remains in place until the matter goes before the Court. This ensures immediate protection of people until the first Court date. From that point, if the matter is not finalised on the first Court date, the Provisional Order is almost always made into an Interim Order, that stays in place until the matter is finalised, or the Order is revoked (which is unlikely).

What grounds are required for a Court to make a (Domestic) AVO?

The Court may grant an Apprehended Violence Order if it forms the view that a person has reasonable grounds to fear and in fact fears:

(a) the commission by another person of a personal violence offence against them, or

(b) the engagement of the other person in conduct in which the other person:

• (i) intimidates the person (or a person with whom the person has a domestic relationship), or
• (ii) stalks the person,

being conduct that, in the opinion of the Court, is sufficient to warrant the making of the order.

If you feel concerned for your safety, it is important that you contact the police. If you feel uncomfortable in doing this directly, contact Prime Lawyers. Our family lawyers have years of experience in dealing with Domestic Violence related matters and can provide you with advice as to how applying for an AVO can affect any family law proceedings, and whether it is likely that certain behaviour can amount to an AVO being granted However, in domestic settings, particularly where you have concerns for your or your child/ren’s safety, it is important to contact the police. We are able to apply for an AVO on your behalf, however, it is only the police that can make an Application for an Order to protect children, as well. Also, if a complaint is made to police that relates to parties who are or have been in a “domestic relationship” and that complaint gives the police concern, then they will make the Application for you and represent you in your case. In addition, where the allegations are serious, the police will also charge the defendant with a criminal offence.

On the other hand, if you are the defendant to an AVO and require assistance in your family law matter, we have the experience to provide you with the relevant advice and obtain Order in the Family Court to ensure that your rights are protected. Further, we can assist you in defending an application for an AVO by referring you to our Criminal Law division, and one of our expert criminal lawyers can defend you in the AVO proceedings and work in tandem with us to ensure that you receive specialist representation in both your family law matter and AVO matter.

What conditions can an AVO include?

In issuing an Apprehended Violence Order or AVO, the Court may include such conditions or restrictions of behaviour that it deems necessary for the protection of the people nominated as protected persons on the AVO. Every AVO contains the “mandatory” conditions, those relevantly being that the defendant is not to assault, molest, harass, threaten, stalk or intimidate the protected person or any person with whom the protected person has a domestic relationship.

Some additional, common conditions that can be included in an AVO are: restricting the defendant from contacting the protected person; restricting the defendant from going within a certain distance of specified premises; restricting the defendant from residing at specified premises; and excluding the defendant from entering specified premises. This also means that an AVO can restrict a defendant from returning to where they live.

The conditions of an AVO can also be tailored to suit the circumstances of the case and can cater for situations where the parties may need to have contact for specific reasons. This is particularly important, for example, where exceptions are made so that the defendant may contact the person in need of protection for the purpose of making arrangements to spend time with the parties’ children.

Can a defendant oppose an application for an AVO?

A defendant may oppose an Apprehended Violence Order being made, in which case, the matter will eventually need to be determined at a “show cause” hearing. However, if the AVO is in place as a matter of course due to criminal charges also being laid, the defendant can only succeed in opposing the AVO if they also successfully defend the charges. If the matter proceeds to a hearing, then the person in need of protection will need to attend Court to give evidence, at the hearing.

Enforcement of AVOs

It is a criminal offence for the defendant to knowingly breach an interim or final Apprehended Violence Order. The maximum penalty on conviction is a $5,500 fine and/or two years imprisonment. If the breach constitutes an act of violence and the defendant is at least 18 years of age, then a custodial sentence is the starting point.

It is therefore the police that ensure that AVOs are enforced. If an AVO is in place for your protection and you are of the view that the defendant has breached the AVO, then only the police can assist you. If a complaint is then made to the police, the defendant will be charged with an offence and brought before the Court. The defendant will then be given the opportunity to either plead “guilty” to the charge or “not guilty”, in which case the matter will proceed to a defended hearing in the Local Court (at a later date) and witnesses will need to attend and give evidence.

Can an AVO be Revoked?

An application may be made to the Court to either change the conditions of or remove an AVO completely. This application may be made by the protected person, the defendant or a police officer. However, an application to vary or revoke an AVO that includes a child as a person in need of protection (PINOP) can only be made by a police officer.

The above is just some information to assist you in understanding some of the important aspects of Apprehended Domestic Violence Orders (AVOs). For a better understanding of how an AVO can have an impact in family law proceedings, read our articles on how an AVO can “impact on the division of property” and “impact on parenting matters“.

If you require assistance with family law proceedings that involve an AVO or domestic violence, our family lawyers can help. We invite you to contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.