In 1982, the Crimes Act 1900 (NSW) was amended by the Crimes (Domestic Violence) Amendment Act 1982 (NSW) to introduce apprehended domestic violence orders in NSW. AVOs could be made for the protection of a person living in a marriage or those living together ‘as husband and wife on a bona fide domestic basis’. In 1983, the protection was extended to cover those who had previously been married or living in a de facto relationship in recognition of the fact that violence frequently occurs after separation. In 1989, amendments extended the cover of persons eligible for protection under an ADVO to include a broad range of domestic relationships.
In 2007, the law about AVOs was removed from the Crimes Act 1900 into a stand-alone Act, the Crimes (Domestic and Personal Violence) Act 2007 (NSW). In 2011, the NSW Department of Attorney General and Justice commenced a statutory review of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The report into that review is yet to be released but it is expected there will be further changes to the laws around ADVOs in response to the review.
Crimes (Domestic and Personal Violence) Act 2007
AVOs are sometimes called ‘restraining orders’ because an AVO ‘restrains’ (stops) a person (the defendant) from doing something towards the fearful person (‘the protected person’). For example, an AVO cannot order a defendant to complete an anger management course, or drug and alcohol rehabilitation. Instead, an AVO can prohibit a defendant from doing something, such as assaulting, intimidating, harassing or threatening the protected person or going to places where the protected person lives or works.
The law relating to AVOs in NSW is set out in the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The objects of the Act state that Parliament recognises that: ‘Domestic violence extends beyond physical violence and may involve the exploitation of power imbalances and patterns of abuse over many years.'
As well as governing AVOs in NSW, the Crimes (Domestic and Personal Violence) Act defines domestic violence offences and creates the specific offences of 'stalking or intimidation with intent to cause fear of physical or mental harm' and 'contravene AVO'. These offences are set out in sections 13 and 14 of the Act. 'Stalking' is defined in section 7 and 'intimidation' in section 8 of the Act.
Section 11 of the Act defines a ‘domestic violence offence’ as a personal violence offence committed by a person against another person with whom the person who commits the offence has or has had a domestic relationship. The meaning of domestic relationship is defined in section 5.
All other domestic violence offences are listed in section 4 of the Crimes (Domestic and Personal Violence) Act, including common assault, sexual assault and kidnapping. If a person is convicted of a domestic violence offence, the Crimes (Domestic and Personal Violence) Act enables this to be specifically recorded on an offender's criminal record. This makes it easier for police and judicial officers to identify previous patterns of domestic violence so they can be taken into account in police responses to incidents, AVOs and criminal prosecutions. It also assists judicial officers in sentencing offenders, as previous convictions for domestic violence offences may be an aggravating factor: see section 12 of the Act.
Different types of AVOs
There are two types of AVOs, differentiated by the nature of relationship between the protected person and the defendant:
- Apprehended Domestic Violence Order (ADVO)
- Apprehended Personal Violence Order (APVO)
Note: This publication is about domestic violence, so we will mostly be referring to ADVOs but will use the general term AVO for simplicity.
Apprehended Domestic Violence Order (ADVO)
An ADVO is made when the protected person is, or has been, in a domestic relationship with the defendant. ‘Domestic relationship’ is broadly defined in section 5 of the Crimes (Domestic and Personal Violence) Act 2007 to include marriage and de facto partnerships; intimate personal relationships; people living in the same household; long term residents in the same residential facility; carers; relatives; and extended family or kin in the case of Aboriginal Australians. It does not matter whether the relationship is past or current.
Apprehended Personal Violence Orders (APVO)
An APVO is made when the protected person and defendant are not in a domestic relationship with each other – for example, neighbours, people who work together, or strangers.