Apprehended Domestic Violence Orders (ADVOs) are a key legal tool in NSW to protect individuals from domestic violence or the threat of such violence.
Increasingly domestic violence is understood to encompass a wide range of behaviours within a family relationship, from physical, emotional and financial abuse, to harassment, stalking and coercive control. An ADVO aims to provide immediate protection to victims by imposing restrictions on the alleged perpetrator’s behaviour.
This article provides an overview of ADVOs, including the legal grounds for obtaining one, what happens before the matter is dealt with in court, how to seek an ADVO and how to defend against one.
Understanding the legal grounds for obtaining an ADVO
To obtain an ADVO in NSW, an applicant must establish certain legal grounds, including:
- Fear of violence or harm: The applicant for an ADVO must have a reasonable fear of violence, threats, harassment, or intimidation from the alleged perpetrator. This fear must be based on actual or perceived actions, and it can extend to not only the victim but also any other person whom the victim believes is at risk.
- Domestic or family relationship: There must be a domestic or familial relationship between the applicant and the alleged perpetrator. This can include current or former spouses or de facto partners, family members, or people living together in a domestic setting.
- Acts of domestic violence: The applicant must provide evidence of specific acts of domestic violence, such as physical assaults, verbal abuse, stalking, or any other behaviour that causes fear or harm. These acts must be recent or ongoing.
- Protection and safety: The court will consider whether the ADVO is necessary to protect the safety and wellbeing of the applicant and any other person at risk.
Some of the actions a person is prevented from taking under an ADVO includes assaulting or threatening the protected person; stalking and intimidating; destroying or damaging property; going within a certain distance of the other person; attending the protected person’s house, or contacting them.
An ADVO lasts for 12 months from the date the order it was made unless the court specifies a different time period.
What happens before the matter is dealt with in court
The process begins with the victim (or someone on their behalf) filing an ADVO application with the local police station or the court registry. NSW Police will most commonly apply for an ADVO on the basis of a report of domestic violence, even where the alleged victim thinks that the order is unwarranted or unnecessary.
In cases of immediate danger, the court may grant interim orders to provide protection right away to the applicant. These orders can be issued without the alleged perpetrator being present or informed. The police are responsible for serving the ADVO application and any interim orders to the alleged perpetrator. This serves as notice of the legal proceedings.
A person the subject of an ADVO should consult a legal professional with experience in domestic violence matters as soon as possible after becoming aware of the order to discuss the steps they should take to possibly have the order dropped.
The matter will typically be listed for a first court appearance where both parties are required to attend. During this appearance, the court may make further orders, including extending interim orders or setting a hearing date. Both parties will have an opportunity to gather evidence to support their case. This may include witness statements, photographs, text messages, or medical reports.
In some cases, the court may suggest mediation or dispute resolution services to attempt to resolve the matter without a full hearing.
The person who is the subject of the ADVO can defend the application at the first hearing by attempting to prove, on the balance of probabilities, one of the following to the court:
- that the complainant or protected person does not fear the defendant;
- the complainant does not have reasonable grounds to fear a personal violence offence from the defendant;
- it is inappropriate for the ADVO to be made.
A person the subject of an ADVO may also consent to it without admissions, meaning they do not agree with the grounds on which the order was granted. A legal representative with experience in this area may then be able to negotiate with police and/or the other party to amend the conditions of the order. Legal advice is highly advisable before agreeing to an ADVO in this manner as it has the potential to affect current family law proceedings, particularly in relation to parental rights.
A person subject to an ADVO may also file a cross-application against the protected person, claiming that they fear the other person and have reasonable grounds to do so. In the case of this type of application, the court will generally hear both applications at the same time.
An ADVO may be appealed within 28 days of a final order being made by the court. It’s possible the ADVO may be ‘stayed’ – or has no effect, in other words – once the appeal is filed and until it is decided.
What factors influence acceptance of the application?
The chances of being granted an ADVO by the court in NSW depends on several factors, including:
- The strength and reliability of the evidence – witness statements, photos, text messages, and medical reports can all play a significant role in supporting the application.
- Credibility of both parties – in considering an ADVO application, the court will assess the consistency of the statements and any evidence presented by both parties.
- Testimony of witnesses – first-hand accounts of the alleged domestic violence may strengthen the applicant’s case.
- Conduct and past incidents – the court may consider any past examples of domestic violence and the alleged perpetrator’s conduct in determining whether an ADVO is warranted.
Other important things to consider
Both parties have the right to legal representation – the presence of a solicitor with experience in ADVO proceedings can be essential to the application being granted.
In some cases, mediation may lead to a resolution that does not require a full ADVO hearing but this depends on the willingness of both parties to engage in the process. In cases where there has been long-term or repeated instances of serious domestic violence, mediation is unlikely to be a suitable suggestion.
The court’s primary concern is the safety and wellbeing of the victim and any other person or persons at risk. If the court determines that an ADVO is necessary to provide protection, it will issue the order, outlining the conditions and restrictions imposed on the alleged perpetrator.
Our expert team can help
Family law matters, including how to approach domestic violence matters, are one of our specialities at Felicio Law Firm. We can advise on ADVO whether you need urgent protection from the violence of a partner or family members, or you are the subject of an ADVO you believe is unwarranted or unnecessary. Call our professional team today for more details on anything raised in this post.
