ADVO and APVO: what the order actually does

Two orders, one Act

Both are made under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). An ADVO — apprehended domestic violence order — applies where the parties are in a domestic relationship: partners, former partners, family members, people who live or have lived together. An APVO — apprehended personal violence order — covers everyone else: neighbours, co-workers, former friends.

Under s 49 a police officer investigating a suspected domestic violence or child abuse offence must apply for an apprehended domestic violence order, subject to the exceptions in that section — which is why most ADVOs are brought by police rather than privately. Section 27 imposes a separate obligation to apply for a provisional order where immediate protection is needed. APVOs are usually private applications, and the court can refer suitable matters to mediation before hearing them.

An order is not a criminal conviction

An apprehended violence order is a civil order. It does not create a criminal record and it is not a finding that an offence was committed. What it does is impose conditions, and breaching those conditions is a criminal offence.

The conditions

Every order carries the mandatory conditions in s 36. The defendant must not assault, threaten, stalk, harass or intimidate the protected person, and must not intentionally or recklessly destroy or damage property, or harm an animal, belonging to or in the possession of that person. Each condition also covers anyone in a domestic relationship with the protected person.

No contact at all, exclusion from a residence, a distance restriction from a home or workplace, prohibitions on contact through third parties or on social media.

Consenting without admissions

The order is made, it is fully enforceable, and breaching it is an offence. The court makes no finding that the alleged conduct occurred. It ends the proceedings without a hearing in which both parties give evidence.

Before agreeing, read the conditions and work out what else they reach.

What an order affects beyond the conditions

• Firearms. A licence is suspended or revoked under the Firearms Act 1996 (NSW). The court has no discretion here.
• Employment screening. An order can be disclosed in working-with-children and some employment checks.
• Parenting arrangements. Where an order excludes a person from a residence or restricts contact with children, it operates alongside — and can cut across — any parenting order or arrangement.
• Tenancy. An exclusion condition affects who can occupy a rented property, and there are provisions in the Residential Tenancies Act 2010 (NSW) dealing with it.

Breach

Contravening a prohibition or restriction in an order is an offence under s 14, prosecuted criminally, and it carries imprisonment. Where the act constituting the offence was an act of violence against a person, s 14(4) requires the court to impose a sentence of imprisonment unless it otherwise orders. Section 14(5) excludes a person who was under 18 at the time of the alleged offence, and s 14(6) requires the court to give its reasons where it decides not to impose imprisonment.

Duration and variation

A final order runs for the period the court specifies. Where no period is specified, the Act sets a default. An interested party — as defined in s 72 — or a police officer may apply to vary or revoke an order, the application being made under s 72A, and the court's power to vary or revoke is in s 73. The court decides whether it is proper to do so in all the circumstances.