Chapter 5: Protection against violence & harassment

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5.1 Domestic violence
5.2 Apprehended Domestic Violence Orders
5.3 ADVOs and family law

5.1 Domestic violence

What is domestic violence?

Domestic violence is when one person tries to coerce or control another person in a family-like or domestic relationship. See Chapter 8 for definition of domestic relationship.

Domestic violence involves an abuse of power and can take the form of coercive control, physical violence, sexual abuse, or sexual violence, emotional or psychological abuse, verbal abuse, stalking and intimidation, social and geographic isolation, financial abuse, cruelty to pets, or damage to property or threats to be violent in these ways. In the majority of cases, domestic violence is perpetrated by men against women. However, women can be perpetrators of violence in both heterosexual and same sex relationships.

What is the difference between domestic violence and family violence?

The terms ‘domestic violence’ and ‘family violence’ are often interchanged. They both generally refer to violence between two or more people who are connected by a domestic relationship.

In NSW, the terms ‘domestic violence’ and violence in a ‘domestic relationship’ are used in the Crimes (Domestic and Personal Violence) Act 2007 (Domestic Violence Act). This legislation deals with personal protection orders called Apprehended Violence Orders (AVOs). However, the federal Family Law Act 1975 (Family Law Act) refers to ‘family violence’. The definition of family violence in the Family Law Act changed in 2012 and acknowledges more types of abuse. See Chapter 8 for the definition of ‘domestic relationship’ and ‘family violence’.

The laws about domestic violence protection orders are different in each state and territory.

Is domestic violence a crime?

Domestic violence is a crime and should be reported to the police.

The police may charge the violent person with assault and/or apply for an Apprehended Domestic Violence Order (ADVO) for your protection. Many police stations also have Domestic Violence Liaison Officers (DVLOs) who should be helpful and understanding if you report domestic violence. Police can get a temporary ADVO quickly to protect you until you can go to court. This type of ADVO is called a Provisional Order.

If you would like the violent person excluded from the house so you (and your children, if you have them) can safely remain in the house, Police have the power to exclude the violent person from the house.

Police should also remove any firearms from the violent person. If the violent person is on bail for assault or some other crime, you can ask that the person be ordered to report to a police station further away from where you and the children live.

5.2 Apprehended Domestic Violence Orders

What is an ADVO and how can it protect me?

An ADVO is a court order that places restrictions on the person who is violent or abusive towards you. In ADVO matters, this person is referred to as the defendant. An ADVO can be tailored to your own circumstances, so it provides the best possible protection. An ADVO can only stop a person from doing something like for example, assaulting, coming to the house, or destroying property. It cannot order a person to do something, for example attend counselling or an anger management course.

What is the difference between a domestic violence and personal violence order?

There are two types of AVOs; Apprehended Domestic Violence Orders (ADVOs) and Apprehended Personal Violence orders (APVOs). You can apply for an ADVO if you are in or were previously in a “domestic relationship” with that person. Section 5 of the Domestic Violence Act sets out the definition of “domestic relationship”. The definition is broad and includes relationships between two people living in the same residential facility. A person’s ex-partner and current partner are also considered to be in a domestic relationship with each other, even if they have never met.

The information in this booklet is about ADVOs.

You should apply for an APVO if you are not related to or have never been in a domestic relationship with the person, for example, you are neighbours or co-workers.

What kind of orders can be made as part of an ADVO?

Every ADVO includes orders that the defendant must not:

  • assault or threaten;
  • stalk, harass or intimidate;
  • intentionally or recklessly destroy or damage property of;
  • you or anyone in a domestic relationship with you. This includes anyone living with you or in a relationship with you.

These orders are called mandatory orders.

In addition to these mandatory orders the Magistrate can make orders depending on your circumstances. For example, orders that the defendant must not:

  • go to your home or workplace; and/or
  • approach you (by telephone, text, email, social media or in person); and/or
  • live at your place; and/or
  • contact you except as agreed in writing between you and the defendant about contact with children; and/or
  • contact you within 12 hours of consuming alcohol or illicit drugs.

When an ADVO is made, the Magistrate can also make an order for you or the defendant to collect personal property. This is called an ancillary property recovery order. It can order that the police or another person go with the person when they are collecting the property.

The orders in an ADVO stay in place for the time period set by the court. ADVOs are usually made for two years but could be for more or less time.

Is it a criminal offence if an ADVO is made against me or someone else?

The purpose of an ADVO is to protect you from the future behaviour of the defendant. Having an ADVO is not a criminal offence and is not listed on the defendant’s criminal record.

However, if the defendant breaches (disobeys) the ADVO, the defendant can be charged for breaching a court order. Police will investigate the breach incident and where there is sufficient evidence, charge the defendant. If that person is found guilty of the charge, a criminal conviction can be recorded.

How do I get an ADVO?

You can report the violence to the police who can then make an application on your behalf, or you can make a private application for an ADVO at your local court.

If you make a private application, you must explain to the court the reasons why you want an ADVO. You should also tell the court what has happened recently and in the past and why you are fearful. You need to know the address of the violent person. The court will prepare the application, which the police will serve on the violent person and order them to come to court.

In the application, you will be referred to as the person in need of protection (PINOP) and the violent person will be referred to as the defendant.

What if I need immediate protection?

If you are asking the police to apply for an ADVO for your protection, the police can apply for a provisional or interim ADVO for your protection. The police will apply for a provisional ADVO when they believe you need immediate protection. A provisional ADVO lasts until it is revoked, or when an interim or final order is made at court, or the application for a final ADVO is withdrawn or dismissed. The provisional ADVO will not be enforceable until it is served on (formally given to) the defendant by the police.

If you are making a private application for an ADVO, you can ask the Registrar to apply for an interim ADVO.

An interim ADVO application can be considered by the court even if the defendant is not in court or aware of the application. However, it will not be enforceable until it is served on the defendant by the police. The interim ADVO will last until the case next comes to court where it can be extended, varied, or made into a final order.

Can my children and new partner be protected too?

The mandatory orders in an ADVO protect you and any person with whom you have a domestic relationship (such as children and a new partner).

If you want your children and your new partner to be covered by all of the orders in your ADVO (other than the mandatory ones), you can also ask that your new partner and children be named separately as a protected person on your ADVO.

Generally, all ADVOs should name any child with whom you have a ‘domestic relationship’ as protected persons (unless the court thinks there are good reasons for not doing this), but if it does not, you should ask for them to be added.

Only the police can make an application for an ADVO for children aged under 16.

If I have an ADVO for my protection, does it mean my partner has to leave the house?

An ADVO does not automatically mean that the defendant has to leave your home.

You can still be in a relationship and have an ADVO that orders your partner not to assault, threaten, stalk, harass, intimidate, or destroy or damage property, and other orders to suit your circumstances, while still living in the same house.

You can also get an ADVO that excludes the defendant from the home or from coming within a certain distance of the home.

Chapter 7 has information about your legal rights and options when you have an ADVO which excludes the defendant from the home.

Do I need a lawyer to help me at court?

If the police made the application on your behalf, the police prosecutor will represent you in court. You will not need to organise your own lawyer. You will still need to go to court to support the police application for an ADVO for your protection.

If you made the application privately, you can represent yourself or have a lawyer represent you. Legal aid is available in some cases to people who meet the legal aid test. There may be a duty solicitor to represent you for free as part of the Women’s Domestic Violence Court Advocacy Service (WDVCAS).

What support can I get at court?

Many local courts have a WDVCAS where you can get help from a court support worker. At a number of courthouses, there are ‘safe rooms’. These are women only rooms where you can speak to a court support worker and/or lawyer. Call your local WDVCAS or your local court to find out whether it has a WDVCAS and a free lawyer. If not, you should tell the court staff about your safety fears so the court can make arrangements to protect you while you are court.

See Chapter 9: Referrals and Resources for more details.

What happens on the first day the application for an ADVO is at court?

On the first day the application for an ADVO comes to court, there are a few possible outcomes:

  • The defendant may come to court and agree to the orders in your application. The defendant can consent to (agree to) an ADVO without admitting what is in the application is true. This is called ‘consenting without admission.’ If the defendant consents to the orders you are seeking, a final ADVO will be made that day.
  • If the defendant does not attend court but there is proof that they have been served with (been given) the application to come to court, the Magistrate can order an ADVO in their absence. This is called an ex parte ADVO. The Magistrate can also make an interim ADVO if the defendant has not been served with the application. An ex parte or interim ADVO is not enforceable until it is served on the defendant.
  • If the defendant has not been served and did not attend court, the matter will be adjourned (postponed) to a later date so the defendant can be served. The ADVO is not enforceable until the order is formally served on (given to) the defendant. The court can make an interim ADVO for your protection which will be enforceable as soon as it is served on the defendant.
  • If the defendant comes to court but disagrees with the application for an ADVO, the court will tell the parties to come back on a later date for a hearing. The court can make an interim ADVO for your protection which will protect you until the hearing. The defendant can agree to this interim order without admitting to any of the allegations or behaviour. If the defendant does not agree to an interim order for your protection, you may need to tell the Magistrate why you need the order. The Magistrate will then decide if you need an interim ADVO for your protection. The Magistrate will also make a date to exchange statements before the hearing date. If the police are applying for an ADVO for your protection, police will draft your statement. If you are applying privately for your ADVO, you should get legal advice about drafting your statement. The WDVCAS can help refer you for advice. See Chapter 9: Referrals and Resources.

What happens after the ADVO is made?

You will be given a copy of the interim or final order by the court staff, or a copy will be mailed to you, and the police will keep a copy of it on their central computer. You should keep a copy of the ADVO with you at all times, either in paper form or on your phone or in your emails. This will make it easier to tell the police about the ADVO if the order is breached.

The ADVO is not enforceable unless the defendant was in court when the order was made or until the police serve the order on the defendant.

If the defendant breaches (disobeys) the order, the police can arrest and charge the person with breaching the order. If you think the defendant has breached the order, you should report it to the police. See below for more information on reporting a breach.

What happens if my ADVO application goes to a hearing?

At the hearing, the Magistrate will listen to the evidence you give about the violence and/or threats of violence that make you afraid. The Magistrate will also hear the defendant’s version of events and then decide on ‘the balance of probabilities’ whether or not you fear the defendant and if these fears are reasonable. If the Magistrate finds you have fears, an ADVO will be ordered for your protection.

Important Information

If the defendant breaches the ADVO there are a number of things that you can do:

  • Keep a record of all breaches of the ADVO, no matter how small they may seem to you. This may help to establish a pattern of abusive behaviour over a period of time. Every time the defendant breaches the ADVO write details about:

    • the date and time of the incident;
    • what happened, including what the defendant did or said and how you responded;
    • any witnesses who saw or heard what happened; and
    • what you did afterwards.
  • Ask any witnesses to keep a record of the incident and write down what they saw or heard.
  • Collect evidence of the breach:

    • A message from the defendant may be a breach of the ADVO. Save any emails, text messages, messages on social media, voicemail messages or messages on your answering machine. You can then show or play these messages to the police;
    • If you are physically injured, go to the doctor or hospital for medical care and ask the doctor to note your injuries and the cause;
    • Take photographs of any injuries (e.g. bruises or scratches).
  • Report the breach to the police. You can telephone the police or go in person to the police station to make a statement. Use the notes you made to help you make a statement to the police. You should report all breaches of the ADVO to police no matter how small or insignificant they seem to you. By consistently making the reports, you can establish a pattern of abusive behaviour over a period of time.
  • Keep a record of any reports you make to police. Write down:

    • the date(s) you made the report to the police;
    • how you made the report (by telephone or in person);
    • the name of the police station where you made the report;
    • the name of the police officer you spoke to; and
    • the police event number. This is a special number that records the incident on the police computer system.

What if I am still afraid when the ADVO is about to end?

If you are still afraid that the defendant will be violent when the ADVO is about to expire, you can apply for an extension (variation) of the ADVO. You must apply before it expires. You should get legal advice about an extension 6–8 weeks before the ADVO expires.

If the police made the original application for your ADVO, you can ask them to make the application for an extension. If the police won’t make the application, you can make it yourself.

If things change during the period of the ADVO, you can apply to the court to have the ADVO varied to increase or decrease the orders.

If the order has expired and you still have fears, you can apply for a new ADVO.

National Domestic Violence Order Recognition Scheme

AVOs (provisional, interim and final) made in any state or territory on or after 25 November 2017 will automatically be recognised in every other state and territory in Australia and therefore enforceable. For AVOs made prior to 25 November 2017, an application for registration can be made to a court in the state or territory in which the person is living.

5.3 ADVOs and family law

Does the Family Law Court need to know about the domestic violence?

In family law proceedings, family violence is a relevant factor for the court in deciding arrangements for children.

This means that an ADVO naming the child, or a member of the child’s family, is taken into account when the court is making decisions about the best interests of a child. This includes past and present ADVOs including interim ADVOs.

It is important to tell the Family Law Court about all family violence, even where it has not been reported to police and even where there has not been an ADVO made for anyone’s protection. See Chapter 4 for more information about this.

What if my ADVO was made before my family law parenting orders?

If you have an ADVO, any later parenting orders that are inconsistent with your ADVO will override those sections of your ADVO. If this happens the family courts must state in the parenting order that it is inconsistent with your ADVO, give a detailed explanation in the order about how the children’s time with the other parent is to take place, explain the order to all people affected by the order, and serve a copy of the order on other parties and on the police and local court.

Where there is an inconsistency, the ADVO will be invalid to the extent of the inconsistency. For example:

  • The ADVO states the father is to stay away from the mother’s home.
  • The parenting order states the father is to collect their child from the mother’s home on Friday at 4pm.
  • The father will not be in breach of the ADVO on Fridays at 4pm, but he will be in breach if he goes to the home at any other time.

What if my ADVO is made after my family law parenting orders?

If you already have parenting orders before an application for an ADVO is made, it is important to tell the police and the local court and provide a copy.

The local court has the power to vary, suspend or discharge the parenting orders to suit the conditions in your ADVO, see section 68R of the Family Law Act. For example, if you hand the children over at your home or the defendant’s home, you might ask to vary the parenting orders so you can hand the children over at a public place. The local court can only use this power if it has new material or fresh evidence available to it which that the court which made the parenting order did not have at the time.

Even though the court has the power to vary the parenting orders, in practice, local courts are reluctant to use this power to vary parenting orders. What this means is that where there are inconsistencies between an AVO order and a particular order in a parenting order, the parenting order will prevail, that is, it will be the order which should be followed.

Can I get protection under the Family Law Act?

If you apply for parenting orders (whether you are married or in a de facto relationship) and your partner is violent, you can ask for an injunction under the Family Law Act to protect yourself and/or your children. An injunction is an order made by the court to do things like stopping or restraining your partner from being violent towards you or from coming to your house.

However, applying for an ADVO from the local court offers better and usually faster protection.

Can I get counselling or other support after my partner perpetrated domestic violence or sexual violence against me?

The NSW government through Victims Services provides free counselling and may provide financial support and a recognition payment for people who have experienced physical or psychological injuries because of domestic violence or sexual violence which occurred in NSW. Victims of domestic violence and sexual violence (as adults) have up to two years to claim for financial support and up to 10 years to claim for a recognition payment. See Chapter 9: Referrals and Resources. There is no time limit for applying for counselling.

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