APPREHENDED VIOLENCE ORDERS
What is an ADVO
An Apprehended Domestic Violence Order (ADVO) is not a criminal charge and does not appear on a National Police Check. Rather, it is an order one person (the Defendant) comply with certain behavioural requirements in respect of another person (the Person in Need of Protection: “PINOP”).
What are the standard conditions of an ADVO?
All ADVOs contain the mandatory orders which are:
(1) “You must not do any of the following to the protected person or anyone the protected person has a domestic relationship with:
a) assault or threaten them
b) stalk, harass or intimidate them, and
c) intentionally or recklessly destroy or damage any property that belongs to or is in the possession of them.”
What additional conditions can be included on an ADVO?
There are other orders that may be imposed, for example place and contact restrictions. Orders are chosen depending on circumstances giving rise to the application and the concerns the applicant has.
How long is a final ADVO for?
ADVOs are typically put in place for 24 months but can be for longer or shorter periods.
What are the penalties for contravening an ADVO?
While an ADVO is not a criminal matter, contravening an ADVO is, and the maximum penalty is $5500 fine and 2 years imprisonment. May have other consequences too, for example on a person’s Working With Children’s Check (“WWCC”), their ability to hold a firearm or security licence, and in relation to family law proceedings.
Varying the conditions of an ADVO by negotiation
One option is to negotiate with police for a less onerous and shorter ADVO. If acceptable terms are reached, the Defendant will “consent without admissions” to the ADVO. This has several benefits: costs are reduced; the risk of an adverse finding of fact by the Court is removed; and the prospects of an associated criminal charge are (usually) removed. On the other hand, the Defendant will still have to deal with the potential consequences of the ADVO set out above.
Varying an ADVO where the protected person is a child
The Act provides that where the protected person is a child the ADVO can only be varied on the application of police. There are some limited exceptions, one being the point at which the provisional order imposed by police is replaced by an interim order imposed by the Court. The consequences of not seeking a variation at this point may regrettably be that the defendant is unable to see their children until the application proceedings are concluded, which may take many months. If you are subject to an ADVO that names a child we recommend you get advice urgently.
Defending an ADVO
The alternative to consenting to an ADVO is to defend it. In that case the Court will make orders for the filing and service of evidence by the Applicant, and in response by the Defendant. The matter is adjourned for about 6 weeks while this occurs. On the second court date the Court will enquire if the parties have been able to reach an agreement. If not, the matter will be set down for a defended hearing.
At the defended hearing the Court reads the evidence and then each witness is cross-examined. The Court then applies the test set out in section 16 Crimes (Domestic and Personal Violence) Act 2007 and if satisfied of the requirements it will make a final ADVO. Otherwise, the application is dismissed.
The test
A Court may only make a final ADVO if satisfied on the balance of probabilities that the PINOP fears on reasonable grounds the commission of a personal violence offence, intimidation or stalking, and the the conduct warrants the ADVO.
The definition of intimidation under section 7 includes cyberbullying.
(a) conduct (including cyberbullying) amounting to harassment or molestation of the person
(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety
(c) conduct causing injury or damage, or violence toward the PINOP.
Stalking includes
(a) the following of a person about,
(b) the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity,
(c) contacting or otherwise approaching a person using the internet or any other technologically assisted means.
Varying a final ADVO
A final ADVO can be varied at any time by application to the Court. A variation application generally requires evidence that there has been a change in circumstances justifying the variation.
Court must make an AVO if a person pleads guilty plea to, or is found guilt finding of, a domestic violence offence
If a person pleads guilty to, or is found guilty of, a domestic violence offence the Court must make a final AVO.
