Domestic violence & Australian family law

An Apprehended Violence Order (AVO) is an order that comes under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The parties involved in an AVO proceeding are the complainant (applicant) or if the police lodge the application, the Person In Need of Protection (PINOP), as well as the defendant.

An AVO sets out to restrain the defendant’s behaviour by listing specific things the defendant is not permitted to do. A lawyer should be familiar with any “standard” orders made, so that they know which areas they should take precise instructions, e.g. are there any children who have contact orders in place? 

Is it necessary for the defendant to only be permitted to travel within a specified distance of a specific residence while engaged in everyday activities?  These issues might require the need to draft alternate orders to fit in with those circumstances.

Definitions

Protected person or Person In Need of Protection (PINOP)

An AVO is made to protect a PINOP

The Defendant

 An AVO is sought for the defendant

Complainant

This is the individual who wants an AVO. This could be either the PINOP or a police officer.

Cross-application

If a defendant to an AVO lodges an application for an AVO directed at the complainant.

Interim order

An order lodged by the court designed to provide protection for the PINOP from the defendant before a hearing.

Provisional order

This is a temporary AVO order made by an officer who is authorised to do so and is normally by telephone.

Order

This is an AVO which includes an interim or provisional order made by a court that is in force under the Act.

There are two categories of AVOs

Apprehended Domestic Violence Orders (ADVOs)

These are used in situations where a domestic relationship exists between the defendant and the PINOP.

An ADVO can only be made if a domestic relationship has taken place between the defendant and complainant. A domestic relationship includes a former or current spouse, a former or current de facto partner, someone who has resided in the same home but not a boarder or tenant, and someone who has had a personal relationship that has been intimate with the defendant.

 Apprehended Personal Violence Orders (APVOs)

These are used in situations where a domestic relationship is not in existence between the defendant and PINOP.

An APVO gives protection for a complainant from the defendant when there is no domestic relationship in existence.

Kinds of behaviour an AVO can influence

An AVO can be made use of to place restrictions on or stop a person from taking part in certain behaviour and activities, e.g. assault, intimidation, stalking, threats, molestation and harassment. An AVO may also place restrictions or disallow access to property where the PINOP lives or works and prohibit or place restrictions on the possessing of firearms.

A court has the jurisdiction to place restrictions or prohibit any behaviour that  is considered to be either desirable or necessary.

A criminal offence takes place when an AVO is breached.

Orders can be

• To not assault, harass or molest or harass
• To not live in the same premises
• To not enter named premises, which includes residence or work
• To not go within a specified distance;
• To not approach, telephone or contact the person who is being protected
• To not make contact with the protected person using any means which includes
• the use of a third party;
• To give up all firearms and associated licences
• To not approach within 12 hours after consuming drugs or alcohol
• To not destroy or damage deliberately property belonging to the applicant.

An AVO in existence does not stop individuals sharing the same roof. The lawyer must warn a respondent client about residing on the same property once an AVO has been put force as the penalties for breaching an AVO are strict.

The relationship that exists between Family Law, Contact and Residency AVOS & Orders. There are optional orders that allow for exemptions for making contact as laid down in the Family Law Act 1975.

A respondent can contact an applicant despite the existence of an AVO if the contract is for any reason allowed by a direction or an order under the Family Law Act which is to do with mediation, conciliation or counselling or if the contract is due to the necessity to arrange or make contact with children which has been agreed in writing or has been authorised through an order or a registered parenting plan under the Family Law Act.

Both parties should be made aware that an AVO does not instantly prohibit or inhibit contact orders. An applicant is not given the “right” to refuse to make any contact between a child and a party under a Family Court order just because there is an AVO in place. AVOs do not take precedence over a Family Court order. However, AVO wording should be taken into consideration so that by following a Family Court order a party does not breach an AVO’s terms. Both orders must be considered simultaneously so there are no contradictions present.

A defendant must be sure that the exact wording of both the orders is taken into consideration before any contact is made with the other party or the children.

The lawyer must make sure that any AVO terms are made known to the court before any contact and residency orders are made and also the terms of any residency and contact orders should be made clear when an AVO is imposed.