ADVOs and domestic violence charges - first steps
What happens when you’ve been charged with a domestic violence offence and have been given an interim ADVO by police? What does it all mean and how can we help you? Read on to find out more.
Police attendance
If police have attended your home after a complaint of domestic violence, likely the first thing they will do is to separate the parties. Police are entitled to take a statement from the complainant by way of video at the time they attend. This is called Domestic Violence Evidence-in-chief – or DVEC. Police rely on this evidence if the matter goes to court and means that the complainant doesn’t need to recall their version later down the track. Instead, the video is played.
Police provisional ADVO
If you’re charged with a domestic violence offence, police will most likely also serve you with a provisional Apprehended Domestic Violence Order (ADVO). Police will apply for a provisional ADVO when they believe that a person needs immediate protection. Where there is an allegation of a domestic violence offence, the police will almost always apply for a provisional ADVO.
The provisional ADVO lasts for 28 days. If the provisional order is made by the police, it has to be listed at the nearest Local Court within those 28 days (although this has changed for the time being to 6 months because of COVID-19 measures). Most Local Courts have a dedicated domestic violence list day and the police will have the application listed on the next available list day.
The conditions that apply to the provisional ADVO will vary from case to case, but there are some conditions that are common on all ADVOs. These conditions are known as “mandatory orders” or “standard orders”. The standard orders are:
You must not do any of the following to (name of the protected person and/or other family member), or anyone they have a domestic relationship with:
(a) Assault or threaten them
(b) Stalk harass or intimidate them, and
(c) Intentionally or recklessly destroy or damage any property that belongs to or is in the possession of (name of the protected person and/or other family member).
“Domestic relationship” includes:
family members, including children, even if you do not live with them
wives, husbands, partners and ex husbands/wives and ex-partners
for an Aboriginal person or Torres Strait Islander, someone who is part your extended family or kin according to the Indigenous kinship system of your culture.
Additional orders
Police can add additional orders to the provisional order, as too can the court once the matter is first heard in the Local Court. The additional orders will vary from case to case but can include the following:
Not to contact the person unless through a lawyer
Not to approach the person’s school or place of study or childcare, or other specified place
Not to approach the person within 12 hours of drinking alcohol or taking illicit drugs
Not to find the protected person.
Other orders that can be made can relate to family law and parenting orders as well as where you can and cannot live, and places that you can and cannot go, including the person’s place of work.
As a result, there’s the possibility that a provisional ADVO can be quite restrictive in terms of where you can and cannot go. It’s a very good idea to get legal advice early in the piece and before that first court date to see whether or not some of those conditions could be varied at court.
Criminal charges
Often, but not always, police will lay criminal charges in addition to the provisional ADVO. It’s important to know the difference between the two. An application for an ADVO is a civil proceeding and if a final Apprehended Domestic Violence order is made by the court, it is a civil sanction. This means that it is not an offence itself and does not appear on a person’s criminal history.
If police charge you with an offence as well as serve you with a provisional ADVO, your criminal charges will be listed at court at the same time as the ADVO application. Common criminal offences that the police will charge, depending on the circumstances include:
Destroy or damage property
Stalk or intimidate
Breach ADVO.
Each of these offences are serious offences and you should get legal advice as quickly as possible and before your first court date. Before your court date, the police will ordinarily give you a copy of the charges and the application for the ADVO as well as the provisional order that you must obey. At the first court date, police will provide a “mini-brief” which includes the main parts of the evidence the police rely on including an audio recording of the DVEC.
What are your options with the ADVO application?
Generally speaking, there are three options. You can:
Consent to the application without admissions
This means that you will follow the orders that are sought – which will always include the standard conditions – for the period of time that the police are seeking, but that you do not admit the facts as they have been set out by the police in the application. Importantly, it is a decision to abide by the conditions and nothing more and neither the court or the police can take that to mean that you agree with the facts.
Consent to the application with admissions
Again, this is a decision to abide by the conditions sought but acknowledging that you agree with the facts set out in the application. While the making of the final ADVO is a civil sanction, as outlined above, this option has implications if you’ve also been charged with a criminal offence.
Defend the ADVO application
If you disagree with the making of the order, you have the option to defend the ADVO application. This means that a hearing is held where witnesses are called to give evidence and the magistrate makes a final decision after hearing all of the evidence.
Combination of ADVO and criminal charges
With the combination of an ADVO application and criminal charges, the options are not always straightforward. Getting legal advice early is key. Your lawyer can also negotiate with the police in regards to a variety of things like, what information is in the statement of facts, the charges on foot, the conditions sought on the ADVO and the length of time sought by the police for the ADVO to be in place.
Need to find out more or want a lawyer to represent you? Our experienced and friendly team at Kingston Fox Lawyers will help you navigate through your options. Give us a call on 0457 781 133 or an email to info@kingstonfox.com.au
