Posted By avinash, on April 15, 2024
What is the difference between an AVO and ADVO?
Posted By Avinash Singh, on March 20, 2023
When a person is served with an apprehended violence order for the first time, they will often ask, what is the difference between an AVO and ADVO?
This is a reference to an apprehended violence orders (AVO) and an Apprehended Domestic Violence Order (ADVO).
While both are orders which restrain specific behaviour there are some key differences.
What is the Difference between an AVO and ADVO?
The main difference between an AVO and ADVO is that an AVO can apply to any person, whilst an ADVO only applies to people who are in a domestic relationship.
A domestic relationship includes family members, spouses, de facto partners and children.
This difference can have significant consequences, particularly if you are seeking to vary an AVO or get an AVO dropped.
Australia is known for having a high incidence of domestic violence with the Australian Bureau of Statistics suggesting that almost 35% of Australian women claim to have experienced domestic violence. This has led to there being a difference between an AVO and ADVO in respect of how regularly police apply for them.
For more information on this you can visit our page on how to get an AVO withdrawn.
What is an AVO?
An AVO, or Apprehended Violence Order, is an order that prevents a person (the defendant) from threatening, intimidating, harassing, stalking, assaulting, or damaging the property of the ‘person in need of protection’ (PINOP).
There are additional conditions that can be included in an AVO such as the defendant not approaching or contacting the PINOP, not attending the PINOP’s home or workplace and not being in the PINOP’s company within 12 hours of consuming alcohol.
An AVO is not a criminal charge. However, it can have deleterious effects in certain professions and prevent you from obtaining a visa or citizenship.
How does an AVO work?
An AVO works by laying down restrictions that prohibit the defendant, who is the recipient of the order, from engaging in certain conduct that could potentially put the protected person in danger.
These restrictions are commonly referred to as ‘conditions of the AVO,’ which may include forbidding the defendant from assaulting, threatening, harassing, or intimidating the protected person.
In this way, an AVO can be seen as a legal measure to safeguard individuals from physical or mental harm. They are imposed when an individual has fears and there are reasonable grounds to fear harm to their well-being or safety.
How to apply for an AVO?
You can apply for an AVO in two ways:
- Private Application: You can make a private application for an AVO through the Local Court. This requires you to attend court and explain to the Registrar why you require the AVO. You will then be given a court date and the case will proceed.
- Police Application: If you ask the police for an AVO, they will decide whether or not there are sufficient grounds for them to apply. They will also decide what conditions to attach to the AVO. which type of AVO is most appropriate for your situation. The police will stay in contact with you about the order and let you know when you need to go to court. A police prosecutor will represent you in court.
Our specialist AVO Lawyers in Sydney have assisted hundreds of clients obtaining apprehended violence orders.
An application for an AVO or APVO can be refused if the court or police do not believe that you have actual fears from the defendant and that there are reasonable grounds for those fears.
That is why it is important to obtain advice before applying for an AVO.
What is an ADVO?
An ADVO is a legal order that prevents a person in a domestic relationship from threatening, harassing, intimidating, assaulting, or contacting their partner or family member.
The Crimes (Domestic and Personal Violence) Act 2007 (NSW) sets out the criteria the court will consider in determining whether to make an AVO:
(1) A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears:
(a) the commission by the other person of a domestic violence offence against the person, or
(b) the engagement of the other person in conduct in which the other person—
(i) intimidates the person or a person with whom the person has a domestic relationship, or
(ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.
How to get an ADVO?
You can get an ADVO if you can show that you have fears from the defendant and there are reasonable grounds for those fears. You must prove this on the balance of probabilities.
If you are applying for a police ADVO, you need to make a report to the police. They can apply for and issue a Provisional AVO (an urgent order) for your protection.
A police application may be made by you attending a police station or after the police have attended an incident or taken a report of an incident.
If the police do not apply for an ADVO on your behalf, you can make a private application. It is important to be aware that a private application has a number of implications, including that you may be liable for the legal costs of the defendant if your application is dismissed.
Breach of an ADVO
If a person contravenes the terms of the order, they can be charged with breaching an AVO. This is a criminal offence which may lead to them being arrested and charged.
If the Court finds there is a breach and proceeds to conviction there is a fine of up to $5,500 and/or imprisonment for up to two years.
What happens at an AVO Court hearing?
At an AVO hearing, the protected person must show why they fear and have reasonable grounds to fear future domestic violence offences occurring, or future harassment, intimidation, or stalking.
This is determined on the balance of probabilities. It is sometimes called a ‘show cause’ hearing.
Circumstances where the protected person does not have to prove they have actual fears include if the protected person is under 16 years of age or has an intellectual disability.
Further, if there is no need to prove actual fear if the Magistrate believes:
- the defendant has committed a previous personal violence offence against the protected person;
- there is a reasonable likelihood that the defendant will commit a personal violence offence against the protected person; and
- the making of an order is necessary in the circumstances to protect the person from further violence.
If a magistrate believes there are reasonable grounds to fear, but the PINOP does not have fears, they can still make an AVO but only on condition 1.
At the hearing, the magistrate will assess the protected person’s evidence of why they have fears.
The protected person may then be cross-examined the defendant’s lawyer. If the defendant is self-represented they will generally not be allowed to cross-examine the PINOP themselves. That is why it is important to retain experienced domestic violence lawyers in Sydney if you are defending or applying for an AVO or ADVO.
The defendant will also speak in the witness box. The police prosecutor, or the protected person’s lawyer can cross-examine the defendant.
The magistrate can also receive evidence such as the application for the AVO, witness statements, phone records, medical reports, emails and text messages or letters.
After hearing the evidence, the parties will be entitled make legal arguments based on case law and legislation setting out why the AVO should be dismissed or made final.
What should I do if I’m served with an AVO?
Once you are served with an application for an AVO, you can respond in the following ways:
- Request an adjournment: this option may be appropriate if you have not yet spoken to a specialist AVO lawyer about your case. The court will generally allow you two weeks to obtain legal advice before requiring you to return to court.
- Consent to the AVO without admissions: this option may be appropriate if the AVO will not have any impact on your future and you do not intend to have any further contact with the PINOP. You can agree to an AVO being made without admitting to any of the allegations made. If you do this the AVO will be made final.
- Negotiate for an undertaking: this option only applies to private AVOs as police will not accept undertakings. An undertaking is a formal promise whereby you agree not do certain things. This option is not legally enforceable and requires the consent of the protected person.
- Mediation: this also only applies to a private AVO. The cost of mediation will be paid by the court. This will involve yourself and the PINOP discussing the case with a mediator. If an agreement can be reached, then the case may be resolved following mediation.
Yourself and/or your lawyer will need to attend court throughout the AVO process. If there is on attendance on your part then the AVO can be made in your absence.
A criminal defence lawyer will be able to advise you of all of your options and how to achieve the best outcome for your circumstances as well as any relevant difference between an avo and advo.
Contact Astor Legal on (02) 7804 2823 or at info@astorlegal.com.au to speak to our friendly team. We can book a consultation with one of senior lawyers to set out a strategy for your case to achieve the best outcome.
