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Legal Guide to Apprehended Domestic Violence Orders in NSW

Legal Guide to Apprehended Domestic Violence Orders in NSW

This guide shows how people can obtain protection orders from the court to protect them from technology-facilitated stalking and abuse. In NSW these protection orders are called apprehended violence orders (AVOs).

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1.1 Apprehended Violence Orders

The Crimes (Domestic and Personal Violence) Act 2007 (NSW) (‘the Act’) is the legislation (law) in New South Wales that allows the courts to make orders protecting people from domestic (or family) violence. A person who is experiencing domestic violence (‘victim’ or ‘protected person’) may apply to the Local Court for an apprehended domestic violence order (‘ADVO’). An ADVO can protect a person by ordering the person against whom the ADVO is made (‘defendant’) not to commit further acts of domestic violence. The Local Court will grant an ADVO if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person (‘victim’ or ‘protected person’) has reasonable grounds to fear, and in fact fears, a personal violence offence or, intimidation or stalking from the other person (‘defendant’). The court must form the opinion that the defendant’s conduct is sufficient to warrant the making of the order.

1.2. Can technology-facilitated stalking and abuse be a form of domestic violence?

The short answer is yes – technology-facilitated stalking and abuse may be a form of domestic violence.

The Act considers domestic violence to be behaviour where there is a domestic relationship between the victim and the defendant, and:

  • the defendant has committed a personal violence offence against the victim; and/or
  • the defendant has engaged in conduct that intimidates the victim, or another person with whom the victim has a domestic relationship with; and/or
  • the defendant stalks the victim.

Personal violence offence
‘Personal violence offence’ is the term given to a group of criminal offences in the Crimes Act 1900 (NSW) and the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Some of the offences relevant to technology-facilitated stalking and abuse are the offences of:

  • stalking or intimidation with intent to cause fear of physical or mental harm: Crimes (Domestic and Personal Violence) Act 2007 (NSW) section 13
  • contravening an apprehended violence order: Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14
  • sending or delivering documents containing threats: Crimes Act 1900 (NSW) section 31
  • threatening to destroy or damage property: Crimes Act 1900 (NSW) section 199

When someone commits a personal violence offence against another person with whom they have or have had a domestic relationship, it is known as a domestic violence offence.

Intimidation
‘Intimidation’ is defined in section 7 of the Act. It includes:

  • Conduct amounting to harassment or molestation of the person, or 
  • an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for their safety, or
  • any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.

When the court considers whether a person’s conduct is intimidation, it may consider any pattern of violence (especially violence constituting a domestic violence offence) in that person’s behaviour.

Examples of intimidation:

  • making numerous and unwanted calls to a person’s mobile phone
  • sending threatening and/or abusive messages (texting messaging, Whatsapp, Snapchat, Facebook messaging, Twitter)
  • hacking into a person’s email or social media account to discover information about them (example: what the person has been doing, where they have gone, etc)
  • hacking into a person’s email or social media account to impersonate them and send abusive messages to family/friends of that person
  • using surveillance devices to spy on a person
  • sharing, or threatening to share, intimate pictures of a person to force them to do (or not do) something

Stalking
‘Stalking’ is defined in section 8 of the Act.

Stalking includes:

  • following a person about
  • watching or frequenting the vicinity of, or approaching, a person’s place of residence, business, or work, or any place that a person frequents for the purposes of any social or leisure activity

When the court considers whether a person’s conduct is stalking, it may consider any pattern of violence (especially violence constituting a domestic violence offence) in that person’s behaviour.

! Note that technology-facilitated stalking (e.g. tracking a person through GPS on their mobile phone) does not appear to come within the meaning of ‘stalking’ in the Act.

Intimidation and Stalking are Offences
The Act creates an offence of stalking and intimidation.

It is an offence for a person (‘the defendant’) to stalk or intimidate another person with the intention to cause the other person to fear physical or mental harm. It is also an offence for a person to attempt this offence.

The defendant is taken to intend to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.

The maximum penalty for this offence is 5 years imprisonment or 50 penalty units, or both.

Where can I find this information in the Act?

See sections 4, 7, 8, 13, 15, and 16 of the Act for more information about what behaviour constitutes domestic violence.

1.3. When is there a domestic relationship between the victim and defendant?

The Act defines the meaning of domestic relationship broadly.

A person is in a domestic relationship with another person if the person is or has been

  • married to
  • in a de facto relationship with
  • in an intimate personal relationship with
  • in a relationship involving her dependence on the ongoing paid or unpaid care of
  • a relative of the other person.

Two people are also in a domestic relationship when they live, or have lived together:

  • in the same household
  • as long-term residents in the same residential facility (excluding correctional and detention centres)

In the case of an Aboriginal person or a Torres Strait Islander, a person has a domestic relationshipwith another person if the person is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person’s culture.

Where can I find this information in the Act?

Please see the Act for a comprehensive definition of:

  • domestic relationship (section 5)
  • relative (section 6) 

1.4. Who can apply for an Apprehended Domestic Violence Order?

The police may apply for an ADVO on behalf a person experiencing domestic violence (sometimes referred to as a person in need of protection (‘PINOP’).

If the PINOP is an adult, that person may also apply for an ADVO on their own at the Local Court of NSW.

Where can I find this information in the Act?

See section 48 of the Act.

1.5. How can an Apprehended Domestic Violence Order protect a person from technology-facilitated stalking or abuse?

ADVOs contain certain conditions restraining a respondent from committing domestic violence, including technology-facilitated stalking and abuse.

A defendant mustfollow the conditions of an ADVO. If the defendant breaks any of the ADVO conditions (called contravening the ADVO), it is an offence and the police can investigate and lay charges against the defendant (see section 1.9 below).

In every ADVO that the court makes, it is mandatory for the following conditions to be included (‘mandatory orders’):

The defendant is prohibited from doing any of the following:

(a)    assaulting, molesting, harassing, threatening or otherwise interfering with the protected person or a person with whom the protected person has a domestic relationship,

(b)   engaging in any other conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship,

(c)    stalking the protected person or a person with whom the protected person has a domestic relationship.

The court may also include any condition in the ADVO prohibiting or restricting the behaviour of the defendant as appears necessary or desirable to the court and, in particular, to ensure the safety and protection of the person in need of protection and any children from domestic violence (‘additional orders’).

The Act provides some examples of additional orders that may be included in an ADVO. The conditions that relate to technology-facilitated stalking and abuse are:

  • prohibiting or restricting approaches by the defendant to the protected person
  • prohibiting or restricting specified behaviour by the defendant that might affect the protected person

The applicant for the ADVO can also ask the court to include conditions that are specific to their situation and which will make them feel safe. For example:

Suggested wording to cover ‘revenge porn’ situations
The person bound is prohibited from directly or indirectly publishing, or sending by email or through other electronic communication, photographs or videos of the protected person engaging in sexual activities or in which the protected person appears naked or partially naked.

Suggested wording to cover ‘tracking/surveillance device’ situations
The person bound is prohibited from attempting to locate, follow or keep the protected person under surveillance.

Where can I find this information in the Act?

See section 35, 36, and 39 of the Act.

1.6. How long does an Apprehended Domestic Violence Order last?

An ADVO remains in force for a period specified by the court. The period is to be as long as necessary, in the opinion of the court, to ensure the safety and protection of the protected person.

If the court does not specify a period, the ADVO will remain in force for a period of 12 months.

Where can I find this information in the Act?

See section 79 of the Act.

1.7. What if a person is in urgent need of protection?

Interim orders

If a person is in urgent need of protection, they can ask the court to make an interim order for their protection when they apply for an ADVO (‘interim ADVO’). The court will make an interim ADVO if it appears to the court that it is necessary or appropriate to do so in the circumstances.

An interim order takes effect immediately and may contain the same conditions as in a final order. It usually lasts until the court can hear more evidence and decide on whether or not to make a final order for an ADVO.

Where can I find this information in the Act?

See sections 22–24 of the Act.

Provisional orders

A provisional order for an ADVO (‘provisional ADVO’) is an interim ADVO applied for by the police.

A police officer can apply for a provisional ADVO when an incident occurs involving the victim and defendant and the police officer has good reason to believe a provisional order needs to be made immediately to ensure the safety and protection of the victim or to prevent substantial damage to any property of that person.

A police officer can apply for a provisional ADVO on the request of a person in need of protection, or on the applicant officer’s own initiative.

A provisional ADVO may contain the same conditions as in a final ADVO.

A provisional ADVO remains in force for 28 days unless:

  • it is revoked sooner that that
  • it ceases to have effect because the court has made an ADVO against the defendant; or
  • the application for a final ADVO is withdrawn or dismissed
Where can I find this information in the Act?

See sections 25–34A of the Act.

1.8. Circumstances where court must make an Apprehended Domestic Violence Order

There are certain circumstances in which the court is obliged to make an ADVO.

Final ADVO

If the defendant pleads guilty to, or is found guilty of, the following offences:

  • stalking or intimidation with intent to cause fear of physical or mental harm
  • domestic violence offence (other than murder, manslaughter, or assault causing death)

the court must make an ADVO for the protection of the victim, whether or not an application for an ADVO has been made, unless the court is satisfied that an ADVO is not required.

Note: See section 1.1 for meaning of domestic violence offence.

Where can I find this information in the Act?

See section 39 of the Act.

Interim ADVO

If the defendant is charged with a ‘serious offence’, the court must make an interim ADVO against the defendant for the protection of the victim, whether or not an application for an ADVO has been made, unless the court is satisfied that an interim ADVO is not required.

Some examples of a serious offence relevant to technology-facilitated stalking and abuse are the offences of:

  • stalking or intimidation with intent to cause fear of physical or mental harm: Crimes (Domestic and Personal Violence) Act 2007 (NSW) section 13
  • sending or delivering documents containing threats: Crimes Act 1900 (NSW) section 31
  • threatening to destroy or damage property: Crimes Act 1900 (NSW) section 199
Where can I find this information in the Act?

See section 40 of the Act.

1.9. Circumstances where police must apply for a provisional Apprehended Domestic Violence Order

There are circumstances in which police are obliged to apply for a provisional ADVO.

A police officer must apply for a provisional ADVO if the officer investigating the incident concerned suspects or believes that a domestic violence offence or a stalking/intimidation offence is likely to be, is about to be, is being, or has been commited against the person in need of protection; or if they have commenced proceedings against the defendant for such offences.

Note: See section 1.1 for meaning of ‘domestic violence offence’. ‘Stalking/intimidation offence’ refers to the offence of stalking or intimidation with intent to cause fear of physical or mental harm – see section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

A police officer must also apply for a provisional ADVO if the officer has good reason to believe an order needs to be made immediately to ensure the safety and protection of the person who would be protected by the order or to prevent substantial damage to any property of that person.

Where can I find this information in the Act?

See section 27 of the Act.

1.10. What if a person breaks the conditions of an Apprehended Domestic Violence Order by engaging in technology-facilitated stalking or abuse?

When a person does not obey the conditions of an ADVO, this is called a breach or contravention of the ADVO.

It is an offence to contravene, or attempt to contravene, an ADVO (provisional, interim, and final). The penalty is a maximum of two years in jail or a maximum fine of 50 penalty units or both.

In NSW, if a protected person aids, abets, counsels, or procures the respondent to engage in behaviour that contravenes the ADVO, the protected person will not have committed an offence.

Where can I find this information in the Act?

See section 14 of the Act.

1.11. Can police get involved if a family member engages in technology-facilitated stalking or abuse?

Certain conduct in relation to technology-facilitated stalking or abuse may constitute a criminal offence, which police can investigate and, if there is sufficient evidence, charge and prosecute. Please see the Legal Guide on Relevant Criminal Offences.

1.12. How can a person apply for an Apprehended Domestic Violence Order?

Applying in person

A person can apply for an ADVO, in person, at the Local Court of NSW.

For more information, please see the LawAssist step-by-step guide on applying for an AVO through the Local Court.

Applying through police

Alternatively, a person can also go to their local police station to report the domestic violence and ask for police to assist with applying for an ADVO.

For more information, please see the LawAssist step-by-step guide on applying for an AVO through the Police.

LEGAL ADVICE: At any stage, it is important for a person to obtain legal advice about their situation and the options available to them. Please see the legal services directory in the Support page for referrals to the nearest legal service.

1.13. Further help and information

Local Court of NSW – Apprehended violence orders (AVOs) resources

Legal Aid – Apprehended Violence Orders (Applicants) factsheet

NSW Police – Police Response to Domestic and Family Violence

NSW Police – Police Response to Domestic and Family Violence – Legal Response

NSW Police – What is Stalking? 
Discusses what is stalking and how to record and report incidents of stalking

1.14 Terminology

Language of 'Victim' vs 'Survivor'

Some women who are experiencing, or who have experienced, domestic violence use the term 'victim' of domestic violence to describe themselves. Others believe the term 'survivor' of domestic violence more accurately reflects their experience.

Whilst acknowledging that each woman's experience is unique and individual to her circumstances, for consistency, these guides will refer to women who are experiencing, or who have experienced, domestic violence as 'victims' of domestic violence.

Gender and Language

While domestic violence can happen in many circumstances (including in non-heterosexual relationships), in the vast majority of reported domestic violence cases men are the perpetrators and women the victims.

For this reason these guides use 'he' to refer to perpetrators and 'she' to refer to victims. This is not intended to exclude other situations.

Definitions

Criminal Offence (or offence)
A criminal offence is an offence against the State. It is commonly referred to as 'breaking the law'.

Summary offence
Less serious offences (such as minor theft), are known as summary offences. Summary offences usually have a maximum penalty of no more than 2 years imprisonment or are not punishable by imprisonment at all.

Indictable (serious) offence
More serious offences (such as murder, manslaughter, sexual assault) are known as indictable offences. Indictable offences are punishable by imprisonment exceeding 2 years.

Charge
When a person is charged with an offence, it means that the police have formally accused that person of committing an offence.

Conviction
When a person is convicted of an offence, it means that person has either pleaded guilty to committing the offence, or a court has found that person guilty of committing the offence.

Penalty unit 
A penalty unit describes the amount payable for a fine. For example, some offences have a maximum penalty of a fine of 100 penalty units, others have a maximum penalty of a fine of 50 penalty units.

Penalty units are used instead of dollar amounts because the rate for penalty units is indexed for inflation and may therefore change from time to time.

Section 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW) states the dollar amount for one penalty unit. As of July 2015: one penalty unit = $110. Therefore, an offence with a maximum penalty of a fine of 50 penalty units will have a maximum fine of $5,550.

DISCLAIMER: The use of technology-facilitated violence is a developing area of the law. The legal information, examples and scenarios contained in the guide are intended to explain the law in general terms only and are not legal advice. They cannot be relied upon or applied by readers in their own cases. Each set of circumstances needs to be looked at individually. You should seek legal advice about your own particular circumstances.