Things you need to know
- If you have been charged with a domestic violence offence, the police will often bring a corresponding application for an Apprehended Domestic Violence Order (ADVO or AVO) naming you as the defendant and the alleged victim the Person In Need Of Protection (protected person or PINOP). An ADVO is an order that prohibits a person from doing certain acts or behaving in a particular way.
- If you enter a plea of guilty to a domestic violence offence, or are found guilty after hearing, the Court will make an order for a final ADVO for a period of two years. If the police withdraw the charge, or you are found not guilty after hearing, the ADVO will usually be withdrawn and dismissed.
- The ADVO creates obligations for the defendant only and it is the defendant’s responsibility to comply with the ADVO. For example, if the ADVO prohibits you from contacting the protected person, you must ignore all messages and calls from them, even where the protected person wants to have contact.
- The police have the discretion to take out an ADVO against the protected person’s wishes. This can be frustrating and distressing, especially where the ADVO prohibits you from contacting or living with your partner, or there are children of the relationship.
- Whilst an ADVO is a civil order, breach of an ADVO is a criminal offence that carries a maximum penalty of two years imprisonment and/or a fine of $5,500.
Process
The NSW Police are responsible for investigating allegations of domestic violence.
Upon receiving a complaint of domestic violence, the police will attend to investigate the allegation and consider whether it is appropriate to lay criminal charges or apply for an ADVO on the protected person’s behalf.
If the police apply for an ADVO (as is usually the case), a provisional order will be served on the defendant and is enforceable until the matter is first heard by the Court. At the first listing, the ADVO will become an enforceable interim order until the matter is finalised as a Final Order.
ADVO only
The police can apply for an ADVO on behalf of a protected person even where the defendant is not charged with any criminal offences.
Where this occurs, you have the following options:
- Consent to the imposition of a final ADVO for a period of two years, without admissions to the conduct set out in the application; or
- Oppose the making of a final ADVO.
If you oppose the application, the Court will list the matter for hearing for a Magistrate to determine whether it is appropriate to make a final ADVO. The Court will generally direct police and the Defendant to prepare and file statements and other evidence in support of their case.
The making of a final ADVO can only occur if the Magistrate is satisfied, on the balance of probabilities, that the protected person has reasonable grounds to fear the commission of a domestic violence offence at the hands of the defendant.
ADVO and criminal charges
Where there are associated criminal charges, the disposition of the ADVO will depend on whether you plead guilty or not guilty to the offences:
- If you enter a plea of not guilty, the matter will be listed for hearing and the interim ADVO will continue until the hearing date. If you are ultimately found not guilty after hearing, the ADVO is usually withdrawn and dismissed.
- If you enter a plea of guilty to the charge, or are found guilty after hearing, the Court will make an order for a final ADVO for a specified period, usually two years. This happens automatically and is not something that is subject of negotiation between the parties although submissions can be made about the conditions.
It can be frustrating for accused persons who intend to defend allegations of domestic violence to be subject to an ADVO pending their hearing date. This is especially so where the ADVO prevents them from living at home, speaking with their partner or having contact with their children. In these circumstances, it is possible to vary the conditions of the ADVO as set out under the heading ‘Varying the ADVO’.
Conditions of an ADVO
All ADVOs contain a mandatory condition prohibiting a defendant from assaulting, threatening, stalking, harassing or intimidating, or destroying any property belonging to the protected person.
The police also have a broad discretion to impose additional conditions, including prohibiting defendants from contacting, living with, going within a specified distance of, trying to find or consuming alcohol in the presence of the protected person.
The ADVO creates obligations for defendants only. For example, if the ADVO prohibits you from contacting the protected person, you must comply with that obligation even where the protected person is contacting you. Similarly, if the protected person invites you to their residence, you must not attend the residence if the ADVO prohibits that from occurring.
Varying the ADVO
It can be very difficult to vary the conditions of an interim ADVO where there are unresolved criminal charges. This is because this type of variation requires consent of the police. We can assist you in negotiating with police if you would like to vary the ADVO pending your hearing date.
Where there is a final ADVO in place, we can assist you by making an application to vary the conditions with the Local Court.
Where the protected person is a child, the application must be served on the Commissioner of Police, and the Court must give leave before the application can be heard.
Breach of an ADVO
It is extremely important that you comply with the conditions of an ADVO.
If not, you could be charged with breach of the ADVO, which is an offence punishable by 2 years imprisonment and/or a fine of $5,500.
Breaches of ADVOs are treated seriously by the Courts, especially if the breach involves violence or threats of violence.
Information for defendants
Convictions for domestic violence offences carry significant penalties and can have broader implications on your family and living arrangements.
It is important to engage an experienced criminal lawyer to assist you in navigating allegations of this nature to ensure you achieve a fair result.
Information for protected persons
The police have the discretion to take out an ADVO against a protected person’s wishes.
This can be extremely frustrating and distressing, especially where the ADVO prohibits your partner from contacting or living with you, or there are children of the relationship.
If an ADVO is in place against your wishes, we can assist you by:
- Making an application to vary the conditions of the ADVO;
- Representing your interests in the proceedings; and
- Ensuring the NSW Police are aware of, and understand, your position.
Further advice
This blog is intended to provide general information about matters that often come before the court and is not legal advice. For legal advice, please reach out to us and speak to one of our lawyers on (02) 9696 1361 (Sydney) or (02) 5104 9640 (Canberra) or by email at info@hugolawgroup.com.au
Lindsay Stankovic, Lawyer
