Apprehended Domestic Violence Orders in New South Wales

An ADVO is made under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). It is sought to protect a person (the protected person) with whom the defendant is, or has been, in a domestic relationship. It is not itself a criminal charge, but breaching it is a criminal offence.

ADVOs are commonly applied for by police at the same time as a criminal charge, but they can also be sought privately. Every ADVO includes mandatory conditions, and the court may impose additional conditions restricting contact, approach, or residence.

Because an ADVO can affect where a person lives, their contact with children, their firearms licence and their employment, the decision whether to consent to or defend an order should be made with a clear understanding of the consequences.

An interim ADVO is a temporary order made by a court before the application has been finally determined. Its purpose is protective: it allows conditions to be in place while the matter works its way through the court process, rather than leaving a person unprotected until a final hearing can occur.

An interim order may be made where the court considers it necessary or appropriate to do so in the circumstances. Importantly, it can be made without the court having heard or tested the evidence, and without any findings of fact about whether the alleged conduct occurred. The making of an interim order is therefore not a determination that the allegations are true.

An interim order generally remains in force until the application is finally decided, the order is revoked, or it otherwise ceases according to its terms. Depending on how the matter proceeds, this may be a matter of weeks or considerably longer.

A common misconception is that an interim order reflects a conclusion that the defendant has done something wrong. It does not. A second misconception is that the conditions of an interim order are merely advisory. They are not — an interim order is fully enforceable, and contravening it is a criminal offence in the same way as contravening a final order.

A defended hearing is the process by which a contested ADVO application is determined. It occurs when the defendant does not consent to the order and the applicant must satisfy the court that the legal test for making a final order is met. The hearing is the point at which the evidence is actually examined, rather than merely asserted.

Hearings occur for many reasons. A defendant may dispute that the alleged conduct took place, may say that the account given is inaccurate or incomplete, or may accept that there was an incident but contend that an order is neither necessary nor appropriate. The fact that a matter is defended does not, in itself, indicate anything about its strength one way or the other.

At a hearing, the court may consider a wide range of evidence. This commonly includes the evidence of the protected person and the defendant, the evidence of other witnesses, documentary material, and electronic records. Each piece of evidence is open to being tested.

Witness evidence is given on oath or affirmation and may be the subject of cross-examination, which is the process by which the reliability and accuracy of an account is examined. The weight a court gives to any account depends not on how forcefully it is expressed, but on how it withstands scrutiny.

Credibility and corroboration frequently feature in this assessment. Credibility concerns whether an account is believable and reliable; corroboration concerns whether an account is supported by other independent evidence. Legal submissions then assist the court by drawing the evidence together and identifying what it does and does not establish against the relevant legal test.

Evidence is the material a court relies on to understand what occurred. In ADVO proceedings it can take many forms, and no single category is automatically more important than another. What matters is what the evidence, taken as a whole, reliably establishes.

Consenting to an ADVO without admissions means that a defendant agrees to the order being made, but does not admit that the allegations underlying the application are true. The order is made and takes effect, but the court makes no findings of fact, and the defendant is not accepting the truth of what has been alleged.

It is helpful to be clear about what this does mean. The order is real and fully enforceable. Its conditions must be complied with, and a contravention is a criminal offence. The order will appear on the relevant register and may have the practical consequences that any ADVO can have.

It is equally important to understand what it does not mean. Consenting without admissions is not a plea of guilty, is not a criminal conviction, and is not a finding that the defendant engaged in domestic violence. Because no findings of fact are made, it does not establish that the allegations occurred.

The option exists because ADVO proceedings are protective rather than punitive. A defendant may conclude that agreeing to an order — without admitting anything — avoids the time, cost and uncertainty of a contested hearing, while a protected person obtains the protection sought. The court is able to make the order on this basis without resolving the factual dispute.

A frequent misunderstanding is that agreeing to an order on this basis is an admission of guilt, or that it will result in a criminal record. Neither is correct. Whether consenting without admissions is appropriate in any given matter is a significant decision that depends on the particular circumstances and should be made with advice.

An ADVO sets out conditions that the defendant must obey. A breach — known as a contravention — occurs where a person is alleged to have done something the order prohibits, or failed to do something it requires. Unlike the order itself, which is civil, a contravention is a criminal offence.

Alleged breaches take many forms. Common examples include contacting or approaching a protected person contrary to a condition, attending a place the order excludes, or engaging in conduct the order prohibits. Even contact that is said to be consensual, or initiated by the protected person, may be alleged to breach an order, because the obligations imposed by the order rest on the defendant.

This is why compliance matters. Once an order is in force — whether interim or final, and whether made by consent or after a hearing — its conditions are binding. The reasons a person may feel justified in departing from a condition are generally not an answer to an allegation that the condition was contravened.

It is important to distinguish two separate things. The ADVO is a protective order that imposes conditions. A contravention allegation is a distinct criminal matter, dealt with according to criminal law and requiring proof to the criminal standard. A person may be subject to an ADVO without any allegation of breach, and an allegation of breach is a separate proceeding to the order that gave rise to it.

A variation is a change to the terms of an existing ADVO. A variation may add, remove or alter conditions, or change the duration of the order. An application to vary may be made by a party to the order, and in many cases by police, subject to the relevant requirements.

Variations may be sought for many reasons. Circumstances change: parties may need to communicate about children, living arrangements may alter, or conditions that were appropriate at one time may become unworkable or unnecessary. In other cases, a protected person may seek stronger or additional protection.

The court's role on a variation application is to consider whether the proposed change is appropriate in the circumstances. The court is not bound to grant a variation simply because the parties agree, and it retains responsibility for ensuring that the order continues to provide appropriate protection. As with the making of an order, the court's focus is on safety and the circumstances before it.

An appeal is a process by which a decision of a court may be reviewed by a higher court. In the context of ADVOs, an appeal generally concerns a final order — whether one was made, declined, or made on particular terms — rather than the interlocutory steps along the way.

Appeals operate according to defined pathways and procedures. There are time limits within which an appeal must generally be commenced, requirements as to how it is brought, and rules governing what the appellate court will and will not reconsider. An appeal is not simply an opportunity to run the matter again from the beginning; it is a review conducted according to established principles.

Because appeals are governed by specific procedural and substantive rules, they require careful and timely consideration. The availability and prospects of an appeal depend entirely on the circumstances of the particular decision.