Mid Mountains Legal Blog

What is an ADVO?

Anthony Steel

An ADVO, or Apprehended Domestic Violence Order, protects a person from someone with whom they are currently or were previously in a domestic relationship.

A domestic relationship covers a wide range of scenarios including:

  1. De-Facto Relationships;
  2. Marriage;
  3. Intimate personal relationships;
  4. Being in a relationship of care, where one party cares for the other (paid or unpaid);
  5. Living together in the same household or previously lived together;
  6. Relatives.

If the parties are Aboriginal or Torres Strait Islander, ‘domestic relationship’ includes a situation where the two people are part of each other’s extended family or kin, in accordance with Indigenous kinship culture.

‘Domestic relationship’ includes the relationship between someone’s current partner and their former partner.

An ADVO can be instigated by the police or privately.

In domestic violence situations requiring an ADVO, police are authorised to take out an AVO even where the alleged victim does not consider it necessary and does not wish to proceed with the Order.

How long does an ADVO last?

The duration of an ADVO is on the Court Order (generally up to 2 years).

An ADVO is intended to protect the other party from physical or verbal abuse, harassment, or intimidation. It prevents a party in a domestic relationship from doing certain things, such as going within a certain distance from the other party, visiting the other party’s house, or contacting the other party via phone or email.

A person who has had an ADVO made against them will be ordered to refrain from:

  1. Assaulting or threatening the protected person(s)
  2. Stalking and intimidating the protected person(s)
  3. Destroying or damaging property belonging to the protected person(s)

More conditions, such as preventing an individual from living with or contacting the protected person(s), can be added depending on the circumstances.

A person found to have breached a condition of the ADVO can be prosecuted and potentially face jail time.

Applying for an ADVO

Steps to apply for an ADVO:

  1. Contact the police: attend at a station or have the police take your statement and start your application after responding to an incident
  2. Give and sign a statement. Provide a comprehensive statement listing the name of the defendant, your relationship with them, and all other pertinent information.
  3. The police will serve your statement on the defendant;
  4. Attend court: attend at the court to have your application finalised.

There are two types of ADVOs:

  1. the police make an application on your behalf;
  2. you make a private application to the court.

Defending or removing an ADVO

If you’ve been named as a defendant of an ADVO, you’re not automatically banned from seeing or contacting the protected person.

If you have an ADVO on your record, it could affect you later, especially if you are considering seeking parenting orders in the Federal Circuit and Family Court of Australia (FCFCOA).

You can contest or defend an ADVO by responding to the application. Even if a final order is made, you can appeal this within 28 days with the District Court.

Defending an ADVO or responding to an ADVO application.

  1. Make a cross application
  2. Respond to the application
  3. Ask for a property recovery order

To buy time to get legal advice, you can ask for an adjournment of the court date.

Filing a cross applications

You can file a cross-application against the protected person, which means in essence that you’re serving them with an ADVO. You will have to prove to that you fear the other person and that you have reason to.

If you’re considering filing a cross-application, it is prudent to consult a lawyer in advance.

Responding to an ADVO application

The protected person need not prove that you have committed violence against them, only that their fear of you is reasonable.

In response you can:

  1. Give the court an undertaking (i.e. a binding promise) that you will adhere to or refrain from a certain action; or
  2. Contest the ADVO – that is, argue the facts of what happened to establish that the applicant’s allegations are false; or
  3. Consent to the ADVO without admissions – that is, you agree to the terms of the ADVO but do not agree with the facts.

Property recovery orders

A property recovery order is a court order allowing you to retrieve personal items from a defendant or protected person(s) (usually accompanied by the police).

you when you collect the items.

Appeal to the District Court

If you attend the court and a final order is made against you, you can appeal this with the District Court. Within 28 days, complete a Notice of Appeal to the District Court and pay a fee. Filing an appeal does not stop an existing ADVO – you have to apply separately to “stay” the ADVO.

The effect of ADVO on parenting orders

If parenting proceedings are commenced in the Federal Circuit Court or Family Court, the court is obligated by law to consider any allegations of family violence.

FCFCOA Orders override orders or restrictions in ADVOs. If an ADVO prevents you from spending time with your children and the FCFCOA subsequently makes Orders allowing you to spend time with your children, you should follow the FCFCOA orders.

The FCFCOA Orders can be attached to the ADVO so that the Local Court is aware the conditions have been overridden.

Inconsistency between Family Court and Local Court Orders

Orders of the FCFCOA override orders made in the Local Court.

For example, if you have an ADVO stating you are not to be within 50 metres of the residence of your children.

If you have FCFCOA parenting Orders that you are to collect your children at 5:00pm Friday from the residence of the protected person of an ADVO, you won’t be breaching the ADVO if you follow the FCFCOA orders.

However, this does not give you a free pass to ignore what is in the ADVO. If you attended the residence of a protected person for any other reason, you would be in breach of the ADVO and could go to jail.

What is an AVO? Is it different to an ADVO

An ADVO (Apprehended Domestic Violence Order) is a specific type of AVO.

In domestic violence situations requiring an ADVO, police have the authority to take out an AVO even where the alleged victim does not consider it necessary and does not wish to proceed with the Order.

Where to now?

Contact us for legal advice or representation regarding ADVOs and AVOs.

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