Applying for an Apprehended Domestic Violence Order
An Apprehended Violence Order (AVO) is a court order designed to protect someone (the person in need of protection – PINOP) from the violence and abuse or threats of violence and abuse of another person (the defendant). There are two types of AVOs:
- Apprehended Personal Violence Orders (APVO); and
- Apprehended Domestic Violence Orders (ADVO).
APVOs are usually made in circumstances involving neighbours or acquaintances, not for domestic and family violence matters.
The following provides information about Apprehended Domestic VIolence Orders. An ADVO is given if you have been in a domestic relationship with the perpetrator (e.g. LGBTIQ de facto relationship, intimate partners, flatmates, etc). An ADVO can protect you if your current or ex-partner has hurt, intimidated, harassed or stalked you, damaged your property or you are scared that they will (that is, they have made threats to harm you or your property).
You can get an ADVO that protects you even if you are still living with or in a current relationship with the defendant.
An ADVO protects you in NSW. If you move interstate you should apply to have your ADVO registered in that state or territory. Contact the Safe Relationship Project for assistance or the police in your new location.
What is an Apprehended Domestic Violence Order?
An ADVO usually states that your partner or ex-partner cannot ‘assault, threaten, harass, molest or stalk’ you. If you have any children in your care, they will be included on the ADVO unless there are good reasons not to.You can also ask the police or Chamber Magistrate to add specific conditions to the ADVO to suit your particular situation for example adding other people like family, children or friends, who may be in danger.
There are two ways to apply for an ADVO:
1. If the police attend a domestic violence incident and a domestic violence offence, stalking offence or an offence against a child has occurred they will make an application for an ADVO to protect you. Or if you make a report to police about a domestic violence incident or your fears of a future incident, the police will make an application for an ADVO to protect you. This means that if the police suspect or believe that domestic violence has happened or is likely to happen the police will apply for a provisional ADVO to protect you. Further information about NSW Police Force issued ADVOs (including other language translations) can be found here.
2. You can also make a private application for an ADVO. If you haven’t or don’t want to call the police youcan make an appointment with the Registrar at your local court and apply through them. If you would like more information about making a private application for an ADVO contact the Inner City Legal Centre’s Safe Relationships Project or another community legal centre for legal advice and information. You can find your local court on the lawlink wesite www.lawlink.nsw.gov.au.
ADVOs and non-urgent ADVOs do not have any effect until they have been served on (given to) your partner.
After the ADVO has been given to your partner, you and your partner will be asked to apear in court. While in court, if your partner agrees to stick by the conditions of the ADVO it will become binding. if they don't agree to the conditions of the ADVO another court date will be set. At the hearing you will be asked to say why you need protection from your partner. Your partner will be given the opportunity to say why they don't believe the order should be made. the magistrate will then decide whether the ADVO will be granted.
If the hearing is adjourned for any reason you can ask the magistrate to make an interim order until the next hearing date. An interim order is a temporary protection order binding until the next court date.
Having an ADVO doesn’t give your partner a criminal record, however, if your partner breaks any of the conditions of the ADVO it is called a breach. A breach is a crime. You can call the police if your partner breaches the ADVO. the police will ask you to make a statement detailing the breach and your partner will need to appear in court. If a person is convicted of breaching an ADVO they will have a criminal record.
If the police have applied for an ADVO on your behalf, the police prosecutor can advise you of the process of your ADVO apllication and will represent you in court.
Ancillary Property Recovery Orders
If you have left your home after a domestic violence incident and you need to collect your personal belongings from the premises, you don’t have to go back to the premises by yourself. The Court can make an order that another person or the police have to accompany you and be present at all times whilst you collect your belongings. This is called an Ancillary Property Recovery Order.
This order directs the occupier of the premises to allow a person to access the premises to remove personal property. The order can only be made at the time that a Court or a police officer makes an ADVO (this includes provisional or interim ADVOs).
Once the Court makes the order, a date and time would be arranged to collect your belongings. The police can be present to make sure everyone is safe. On the order you can specify the property that is yours and what needs to be recovered. If there is a dispute over ownership of property, that will have to be sorted out at a later date as the order does not create legal rights of ownership.
In your ADVO application, you can apply for an order that will exclude your partner from entering, residing or loitering near your home. These are called Exclusion Orders.
An exclusion order allows you to remain at home as part of an ADVO and excludes, or removes, the violent person.
To get an exclusion order you need to request it in your application for an ADVO. It’s important to discuss this option with a lawyer, court support worker or police officer when applying for an ADVO.
Sometimes it’s best to get an exclusion order as part of a Provisional Order, which police can apply for following a violent incident.
Is this something for me?
Before applying for an exclusion order, there are a number of questions you should be asking yourself:
1. Will you be, and feel, safe if you stay at home?
2. Will you be fearful because your partner knows where you are living?
3. Would you prefer to stay at home and have the violent person leave?
4. Do you have children, and would they be better off remaining at home with you?
5. Can you afford to pay the housing costs?
What’s relevant to the Court in making an exclusion order?
The Court decides a number of things in deciding whether or not to make an exclusion order. These are:
1. The safety and protection of the protected person and any children living at home, if such an order is not made.
2. Any hardship that may be caused by making or not making the order, particularly to the protected person and any children.
3. The accommodation needs of all relevant parties, particularly the protected person and any children.
Any other relevant matter.
If you are applying for an ADVO it is good idea to seek legal advice. The Safe Relationships Project can be contacted via the Inner City Legal Centre (1800 244 481). You can also call the Law Access Line (1300 888 529) or the DV Line (1800 65 64 63) to find out more about ADVOs and for other legal information.
ADVOs are not automatically effective in other States or Territories. However, an ADVO can be registered in New Zealand and other States (except WA) by providing a copy to the police and proof that it has been served on you partner. Your ADVO can be enforceable in States and Territories other than NSW. if you wish to move interstate, it is best if you have your NSW ADVO registered in the NSW State or Territory. Contact the magistrate's court or a women's or community legal service in the new State or Territory for help in registering your ADVO interstate.
How to Report a Breach
All Breaches of your ADVO can be reported to the police. You can report a breach by going to the police station, by telephoning a police station or in an emergency, by calling 000.
Reporting a Breach to a Police Station
If you go to a police station to report a breach of an ADVO, it is a good idea to make a written statement about what happened. Giving a verbal statement may mean that you become involved in court proceedings for breach of the ADVO as a witness against the defendant. If this happens, you may be cross-examined by the defendant's solicitor, or by the defendant, if the defendant has no solicitor.
A written statement is a document that may be used as evidence by the police to help prosecute the defendant in court for breaching the ADVO.