The recent defamation case between Johnny Depp and Amber Heard may have caught a lot of attention from the public. All these dramas started on 23 May 2016 when Amber Heard initiated an application for divorce along with a temporary restraining order against Johnny Deep, alleging that there were irreconcilable differences and that Johnny Deep showed behaviours of domestic violence.

The defamation case was initiated by Depp because of an opinion piece written by Heard earlier in 2018. The article was published in The Washington Post, in which Heard emphasised that she is “a public figure representing domestic abuse”, dropping the hint that Johnny Depp was a domestic abuser.

While the celebrity gossips are amusing to hear, getting involved in domestic violence in real life is stressful and can be traumatic. The U.S. law would be of little help since most people viewing this blog article may be from Australia. What happens if you have been issued an AVO and what are the consequences if you breach it? For those who are suffering domestic violence or abuse, how could they apply for an AVO? Let’s have a closer look at how AVOs are dealt with in Australia.

What is an AVO?

In NSW, there are two types of Apprehended Violence Order, Apprehended Domestic Violence Order (ADVO) and Apprehended Personal Violence Order (APVO). They are orders made by a court against certain person, for example, an ex-partner who you fear may put you in danger or already have domestic violence behaviour. AVOs assist in protecting people from violence, intimidation, stalking, threatening as well as harassment.

Apprehended Personal Violence Order (APVO):

This order is usually made when the people involved are not related and no domestic relationship exists, such as your colleagues or neighbours.

Apprehended Domestic Violence Order (ADVO):

In family law, we deal with ADVOs more often because they are made to restrain people who have an intimate domestic relationship or are related. ADVOs are sometimes called protection Orders or restraining Orders in other states.

Who can apply and which court makes such orders?

AVOs are not considered to be criminal charges but a method to protect the affected person from further harm, AVOs restrict the abuser’s behaviour to make the protected person feel safe and supported. Such Orders would also protect children from domestic violence.

Anyone who is 16 years old and is in fear of intimidation and harassment from domestic violence can apply for an AVO (s15 Crimes (Domestic and Personal Violence) Act 2007 (NSW)). You can either apply yourself or the police could be of assistance by filing an application on your behalf.

If you take this to the Police, a Domestic Violence Liaison Officer will help you go through this process. You do not need a lawyer if the police make this application on your behalf, the Police Prosecutor will present your matter in court. The Court will grant an AVO if the defendant agrees to it, or after the evidence has been heard and the Magistrate is satisfied that your fears and concerns for your safety are reasonable. In some urgent circumstances, you will need to apply for an interim Order to temporarily protect you from the abuser or the alleged abuser until the hearing.

An AVO application made by yourself is called a private application.  If you wish to proceed with a private application, you can do this via the Local Court or through your lawyer, who will make sure the AVO suits your situation. The NSW Children’s Court also has the power to make or alter an ADVO in certain cases where children are involved or in need of protection.

What if the parenting Order conflicts with the ADVO?

It is the Federal Circuit and Family Court of Australia (FCFCA) who has jurisdiction to make parenting Orders, while the domestic violence Orders are often made under the state or territory laws. Any orders of the Commonwealth override the state or territory decisions. In summary, the parenting Orders made by the FCFCA will supersede if there is inconsistency between a family violence order made by state or territory (ss68P and 68Q of the Family Law Act 1975). Although AVOs have different names in different states, you can choose to register the AVO to reach the effect of enforcement in any other state or territory if you think necessary.

There are circumstances when AVOs allow parties to get in touch with each other. For example, if parent A has an AVO against him/her and wishes to collect a child from parent B, the protected person, and the conditions of the AVO include that parent A should not be within 100 meters of parent B’s residence, then this will not amount to a breach of the AVO considering the purpose of approaching the protected person’s residence is to comply with a parenting Order. In sum, delivering or collecting a child from the other party’s residence and attending family counselling, family dispute resolution or court meetings usually do not amount to a breach of an AVO if it is done in accordance with a parenting Order.

What if I have been issued an AVO?

When you did something that the AVO expressly stated you are not allowed to, you would breach an AVO. Sometimes you could be charged when the protected person contacted you and wish to talk or meet with you somewhere, if the conditions of your AVO indicate that you should not contact the protected person.

There are serious consequences for breaching an AVO, you may be charged with a criminal offence such as assault or malicious damage, sometimes even along with a monetary penalty. Once you have been arrested and charged with contravening the AVO, the court has the discretion to fine you $5,500.00 and/or sentence you to a maximum 2-year imprisonment.

From 25 November 2017, all ADVOs are automatically recognised nationally and are enforceable. You can negotiate with the other party to have the AVO against you removed. You should consult with a lawyer first to get comprehensive legal advice if you have been charged with breaching an AVO.

Contact us

If you would like more information on family violence and how the Family Law Team at Genesis Edge Law Group can assist you, please do not hesitate to contact us on 1300 559 888 or fill out the enquiry form here.