What is the Difference between an AVO and ADVO?
In NSW there are two types of apprehended violence orders; An AVO (Apprehended Violence Order) and an ADVO (Apprehended Domestic Violence Order).
The key difference between an AVO and ADVO, is that an ADVO is only applied to people who are in a domestic relationship.
Both are court orders that are put in place to protect people from the dangers of violence and are upheld in a court of law.
If you have been charged with an AVO, you will want to speak to our amazing team of AVO lawyers to get specific legal advice.
The process of obtaining either an AVO or ADVO varies from state to state, but can be made in any state or territory, and can be registered for enforcement across borders and states.
This article will break down the key differences between an AVO and ADVO.
Key Points Of Difference between an AVO and ADVO
- An AVO can apply to any person against another person, whilst an ADVO is only applied to people who are in a domestic relationship.
- A domestic relationship could mean a family member, a spouse, a de facto partner, or a child.
- An AVO and an ADVO are not criminal charges, however, breaching either one of them warrants criminal sanctions.
What is an AVO
An AVO, or Apprehended Personal Violence Order, is a prevention order that is designed to protect the 'person in need of protection' (PINOP) from being threatened, intimidated, harassed, stalked, assaulted, or otherwise threatened with violence.
An AVO applies to people involved in a violent situation who they are not related to and do not have a domestic or intimate relationship with; for example, they could be neighbours or acquaintances.
An AVO is not a criminal charge and is intended to prevent any further violence or threats from occurring against the PINOP.
It specified certain conditions that the person the AVO is for must observe, these can include not going to the PINOP's home, workplace or any other place they associate with.
It also limits the perpetrator from contacting or communicating with the PINOP, or from holding them against their will in any way.
How does an AVO work?
AVO's are court orders that are put in place to protect people from others who may be violent towards them. They are also delivered when there is a significant fear or harm to an individual's safety.
The way they are enforced is by listing things that a defendant (receiver of an AVO) is not permitted to do. For example, the defendant must not assault, threaten, harass or intimidate the protected person. These are known as 'conditions of the AVO.'
How do I apply for an AVO
There are two ways to apply for an AVO.
- You can apply through a private application yourself, or
- The police can make an application on your behalf.
If there are fears for your safety after a violent incident, the police can apply for something called a 'provisional AVO' which will temporarily act as an AVO straight away.
The police will then keep you updated about the AVO and be in contact about any court appearances.
The police will formally give (serve) the defendant the AVO application prior to any court appearances so that you do not have to be in contact with them.
If you choose to pursue private application you can apply for an AVO at the Local Court.
It's important to note that any application for an AVO or APVO may be refused if there is any suspicion of the application being vexatious or if there are no reasonable grounds for the order.
If this is the case and the application is deliberately made to insight malice, rather than safety, the court may refer you to mediation.
An AVO is in effect until the court finds it no longer necessary though it may be renewed for a further period of time.
What is an ADVO
Under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) a person can apply directly to the court for an ADVO.
The circumstances in which a court can make an ADVO are explained in Part 4 of the Crimes (Domestic and Personal Violence) Act 2007 as follows;
(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.
An ADVO, or Apprehended Domestic Violence Order, is an order designed to protect a PINOP from experiencing further domestic violence or threats.
It is similar to an AVO in that it sets out conditions that the defendant must obey, but it also contains additional directions regarding contact between the PINOP and accused person.
Difference Between an AVO and ADVO
When assessing the application for an ADVO there are multiple factors to be considered by the court.
The court must at all times consider the safety and protection of the PINOP and/or any children involved, either living or ordinarily living at the residence.
One difference between an avo and ADVO is that an ADVO applies to people who are related or are in or have previously been in an intimate partnership.
Within the Aboriginal community ADVOs are also made where people involved are part of the kin or extended family.
An ADVO is in effect for 12 months from the issue date and at the end of that periods the terms of the ADVO can be amended.
It can also be extended for a further 12 months or more if violence or any threats of violence continue.
Similar to an AVO, an ADVO could prevent the perpetrator from visiting the PINOPs residence or workplace school.
The conditions could also state that they are not to be in the company of the protected person for at least 12 hours after the consumption of any alcohol or drugs.
Other conditions instated could be that they are not allowed to own any firearms or prohibited weapons, or are under no circumstances to try and locate the PINOP.
If there is any breach of these terms and conditions the person may be arrested and charged with contravening the order and the police may issue a Court Attendance Notice.
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 in court when you are applying for an AVO
An AVO court hearing is sometimes known as a 'show cause' hearing. This is because the protected person must prove on the balance of probabilities (how likely it is) that they are in fear and have reasonable grounds to fear any future instances of violence.
This includes any violent offences, future harassment, intimidation or stalking.
Under certain circumstances an AVO may also be made without proof of the PINOP's fear if the magistrate believes the following:
- The defendant has committed any previous offences of violence against the PINOP
- There is reasonable grounds that the defendant will commit any act of personal violence against the PINOP
- The granting of a court order (AVO) is necessary in order to protect the PINOP from any future violence
If the magistrate believes there are reasonable grounds to fear the safety of an individual, but the person needing protection argues the opposite, the magistrate may still make an AVO but only with specific orders about behaviour.
At the hearing the magistrate will first listen to the PINOPs evidence surrounding their fears, to which the protected person may then be cross-examined (asked questions) by the defendant's solicitor.
On some occasions, the defendant may represent themselves in which case the defendant will then cross-examine the protected person. The magistrate will then listen to the defendant's version of events.
A police prosecutor, or the protected person and/or their solicitor if it is a private AVO application are able to cross-examine the defendant.
When making their decision the magistrate will consider all evidence including the application for the AVO, any statements, any verbal accounts of incidents given by witnesses and any documents.
These documents can include phone records, text messages, medical reports, letters or any form of communication between the defendant and the protected person.
What should I do if I'm served with an AVO
When you are served or given an application for an Apprehended Violence Order the application will tell you the date and time of which Court you must go to.
The difference between an AVO and ADVO when getting served is negligible.
You should seek the advice of an AVO lawyer to get a full understanding of what you can't do.
Before you get to court there are various factors to be considered and how you want to respond to the application. These options include the following;
- Ask for an adjournment; if you haven't sought out legal advice before your court date you can ask the court to adjourn your case to give you more time. To do this you can write a letter to the court or ask for an adjournment at the mention, normally and adjournment can be between one or two weeks.
- Ask for the court to be changed; if your AVO tells you to go to a court that is far from where you live or difficult to travel to you are entitled to ask for it to be moved to a different court in NSW. You can't move your court to a different state or territory as the law surrounding AVOs varies from state to state.
- Give an undertaking to the court; an undertaking is also known as a formal promise, instead of agreeing to an AVO. This means that you would agree to not do certain things, however it is not legally enforceable and can only be done if the applicant agrees to it.
- Consent to the AVO without admissions; you can agree to an AVO being made against you but not admit to any of the allegations in the application. If you do this the AVO will be made immediately.
- Mediation; if the AVO includes any act of personal violence the court will refer your case to mediation. The cost of mediation will be covered by the court and it will include a discussion of the case with the protected person, yourself and a mediator. If you reach an agreement with PINOP at court you can also have this made into an enforceable agreement.
Conclusion
In conclusion, the difference between an AVO and ADVO is not particularly large.
They are both court orders aimed at protecting people from domestic violence or threats of violence.
An AVO applies to people involved in a violent situation who they are not related to and do not have a domestic or intimate relationship with, whereas an ADVO applies specifically to those who are in a current domestic relationship.
An AVO is intended to prevent further violence or threats, and remains in effect until the court finds it no longer necessary, while an ADVO sets out conditions regarding contact between the PINOP and the defendant and remains in effect for 12 months, with the possibility of an extension.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
