What is an apprehended domestic violence order?
An Apprehended Domestic Violence Order (ADVO) is a court order made to protect a ‘person in need of protection’ (‘PINOP’) from violence, harassment, intimidation or stalking. These orders are issued where there is an existing domestic or family relationship between the PINOP and the defendant.
Examples of where an ADVO would be issued include:
- Where you are married, de-facto, or in an intimate relationship;
- Where you live in the same house (for example, a parent and child);
- Where one person cares for the other;
- Where you are a relative of the PINOP;
- Where you are part of the same Indigenous kinship system.
How can an ADVO be made?
There are two types of ADVO’s that can be issued – a ‘private ADVO’ and a ‘police ADVO’.
Private ADVO
A PINOP can apply to have an ADVO put in place and these are known as ‘private ADVOs’.
Police ADVO
Alternately, if police are concerned about the welfare or safety of an individual, an application for an ADVO can be made on behalf of PINOP, even if they do not want an ADVO in place.
What conditions can be imposed on an ADVO?
When an ADVO is ordered, there is a mandatory condition that the defendant must not do any of the following to <protected people>, or anyone <she/he/they> <has/have> a domestic relationship with:
- A) assault or threaten <her/him/them>,
- B) stalk, harass or intimidate <her/him/them>, and
- C) deliberately or recklessly destroy or damage anything that belongs to <protected people>.
Additional orders can be sought, and these include the defendant:
- No longer being allowed to reside at the family home;
- Not allowed to contact the protected person except through the use of a lawyer;
- Not allowed within a certain distance from the protected person/s residence, work or school;
- Not allowed to be in the company of a protected person for at least 12 hours after taking alcohol or drugs;
- Not allowed to possess any firearms or prohibited weapons’; and/or
- Not allowed to try and locate the Protected Person.
What happens if an ADVO is breached?
For a breach of an ADVO to be made out, the prosecution must prove that:
- There was a breached a condition or restriction of an ADVO; and
- That the breach was committed knowingly (i.e. the breach was not accidental)
The maximum penalty for breaching an ADVO is 2 years imprisonment and/or a $5,500 fine.
Are defences available to breaching an ADVO?
Depending on the circumstances that led to the breach of the ADVO, a defence may be available. Examples include:
- Where the individual did not realise or know that they were contravening the ADVO;
- Where an individual was not served with an ADVO or was not in court when the ADVO was made;
- The breach occurred in order to attend mediation or to comply with a property recovery order;
- The breach occurred where the individual was seeking to protect themself, another person (such as their children), or their property;
- The individual was coerced or threatened into breaching the ADVO; or
- The breach of the ADVO was to prevent serious injury or danger.
If you or someone you know required assistance with an applying for, or defending, an Apprehended Domestic Violence Order, you can contact the team at Hamilton Janke Lawyers 24/7 by calling 4038 1666.
