Apprehended Domestic and Personal Violence Orders in NSW

At some point in life, it is common to experience conflicts with friends, family, or loved ones. While most of these conflicts are often resolved amicably, some may escalate into violent situations. In New South Wales, the law provides a mechanism for individuals who feel threatened or unsafe to seek protection through Apprehended Violence Orders (AVOs).

At McDonald Law we understand how difficult it can be to navigate the legal system when it comes to domestic violence. That’s why we’ve put together this guide to help you understand Apprehended Domestic Violence Orders (ADVOs) and Apprehended Personal Violence Orders (APVOs) in New South Wales (NSW).

If you have been arrested for any of these matters. Do not speak to the police until you speak to one of our lawyers and we will be able to advise you of your options. You can call us on 0411460034 or you can make an appointment to see us at either one of our offices in Sydney or Norwest (North-West Sydney – near Rouse Hill).

Types of Apprehended Violence Orders

In New South Wales, there are two main types of Apprehended Violence Orders:

• Domestic AVO (ADVO) and
• Personal AVO (APVO)

What is an Apprehended Domestic Violence Order?

An ADVO is a court order designed to protect people from domestic violence. It can be obtained by anyone who has reasonable grounds to fear for their safety due to the behaviour of a person they have or had a domestic relationship with. This includes spouses, de facto partners, family members, and people in intimate relationships.

An ADVO may prohibit the person who has committed domestic violence from contacting or approaching the protected person, entering their home, or possessing firearms. It can also include other conditions that the court deems necessary to ensure the safety of the protected person.

What is an Apprehended Personal Violence Order?

A personal AVO is an order that is made to protect a person from violence that is not domestic-related.

This type of AVO can be sought by anyone who feels unsafe or threatened by another person, regardless of whether there is a pre-existing relationship between the parties.

It works the same way as an Apprehended Domestic Violence Order by protecting people from personal violence offences.

Perhaps the most common example of when a person might apply for an apprehended personal violence order is when there is an altercation between neighbours involving a fencing dispute.

How to Obtain an ADVO or APVO and the Process

To obtain an ADVO, the protected person can either:

• Apply for an ADVO at the local court or police station, or
• Request that the police apply for an ADVO on their behalf.

Generally, the application process will be through a complaint made to the police and involves providing a statement. This is usually taken through a Domestic Violence Evidence in Chief recording called a DVEC. This involves you telling the police what happened while being video and audio recorded. You do not have to provide a statement in this way and can give an audio recording only or request the statement to be typed.

The police will also seek to interview any other witness that was present and observed. However, domestic violence offences are typically one-on-one and perpetrated behind closed doors away from public scrutiny. That is why it is important to report incidents of domestic violence given they are not exposed unless the victim tells someone.

The other process is that you attend the Local Court to apply for an AVO. You will be given a kit, or you can meet with the Chamber Magistrate or Registrar.

Once the complaint is accepted the application will be sent to the police to serve on the defendant.

Going to Court

Your case will then be listed for “Mention” at the Court. This will take a few weeks to allow the defendant to attend.

A number of things could happen on the Mention date:

1. The defendant consents (without admissions) and a Final AVO is made.
2. The defendant does not consent (agree) and the court makes directions for the parties to prepare written statements.
3. The defendant gives an undertaking (not legally binding) and you withdraw the application.
4. You and the defendant are ordered to attend mediation.
5. If the defendant does not attend, a Final AVO is made.
6. If you do not go to court, your application will be dismissed.
7. You withdraw your complaint, your application will be dismissed.

If the defendant does not consent then the case will be listed for hearing where both parties will have an opportunity to present their evidence and argue their case. If the court finds that an ADVO is necessary to protect the safety of the protected person, it will be granted. If not, then it will be dismissed.

It is very common if a report is made to a police officer that an ADVO or APVO will accompany criminal charges such as an assault or intimidation offence.

The NSW Police Force Domestic and Family Violence Policy:

“encourages investigating officers to give the strongest consideration to arresting offenders of domestic violence offenders. Charges will be laid against offenders where sufficient admissible evidence exists to support criminal charges.”

That means, it is likely, if you are accused of a domestic violence offence, you will be arrested, charged, and served with an AVO.

Depending on the seriousness of those charges, you may be refused bail and have to appear a court and Magistrate will decide whether you are an ‘unacceptable risk’ to the community, victim, or other witnesses, or you may have to ‘show cause’ as to why your continued custody is not justified. In order words, it can be very difficult to have strict conditional bail granted by a court.

If any of the above happens, you need expert legal advice, do not speak to the police or give any interview before you speak to one of our lawyers at McDonald Law.

Breach of an ADVO

If the person has committed a domestic violence offence and so breaches the conditions of an ADVO, they can be charged with the criminal offence of Contravene ADVO. This can result in a fine, imprisonment, or both.

If the breaching offence, such as an assault, involves actual violence to the victim, the starting point for the court is a custodial sentence i.e. gaol.

It’s important to note that the protected person does not have to prove that the person who committed the domestic violence breached the ADVO. If the police have reasonable grounds to suspect a breach has occurred, they can charge the person who committed the domestic violence.

What to Do If You Have Been Served with an ADVO or APVO.

If you have been served with an ADVO, it’s important to seek legal advice as soon as possible.

A breach of an AVO, as above can have serious consequences so it is essential that you understand the conditions of the order and comply with them.

If you disagree with the conditions of the ADVO or APVO you can apply to have them varied or revoked, and you can challenge them in court.

A court will only make, vary or revoke an ADVO or APVO if it is satisfied that the change is necessary to protect the safety of any protected person or persons.

Take Away

ADVO and APVO’s are an essential mechanism for protecting individuals from violence and threatening behaviour.

Domestic and Personal violence offences and orders are very serious matters. You could go to gaol if you are found guilty of breaching an order.

The Police are extremely sensitive about domestic and personal violence offences and look toward charging rather than exercising their discretion or releasing you without issuing you a Court Attendance Notice.

If you are arrested for a domestic or personal violence offence do not speak to the police, ring McDonald Law immediately on 0411460034 so we can give you advice on whether you should participate in an interview.

We can attend the police station and sit in with you and give you the advice you need should you wish to participate in an interview called an ERISP – which stands for Electronically Recorded Interview of a Suspected Person.

While the police may be pleasant, make you feel at ease and appear to be your friend, they are not. Their only goal is to extract as much information from you as possible to build a case against you to support their ‘prosecution theory’. While they have positive obligations to ensure your legal rights are protected, such as your right to remain silent, they will try to gather as much evidence from you while you are in a vulnerable position. As a result, you may say something that could harm your defence.

Seek advice from a lawyer if you are considering applying for an ADVO or APVO against a person.

As a victim of domestic or personal violence, if you feel unsafe or threatened, you should seek legal advice and consider applying for an AVO.

The process may seem daunting, but it is essential to take action to protect yourself or your loved ones.

Remember that breaching an AVO is a criminal offence, and the consequences can be severe, so the defendant is very incentivised to comply with the orders.

At McDonald Law we offer a range of legal services to help people affected by domestic and personal violence. We understand that seeking help can be difficult, but we’re here to support you every step of the way.