Previously, the court required proof that the Person in Need of Protection (PINOP) had reasonable grounds to fear and in fact feared domestic violence.
The subjective part of the test related to ‘reasonable grounds’ has now been removed for all PINOPs. This will allow courts to make orders protecting PINOPs who may be reluctant to express fear due to concerns about retaliation from an alleged perpetrator.
The conditions of an ADVO have also been changed, with a new automatic condition prohibiting a defendant from damaging or destroying the PINOP’s property.
Additional discretionary conditions can still be made on ADVOs where the subjective test is satisfied. There are now two forms of ADVOs that will be made, depending on what evidence from the PINOP is available to the Court.
Other important changes are:
an expanded range of offences are categorised as “domestic violence offences”. Any offence committed with the intention to coerce, control or intimidate a PINOP will now meet this definition;
an expanded definition of “domestic relationship” to cover the relationship between a current and former partner of the PINOP;
the Children’s Court now has jurisdiction to make or vary ADVOS during care proceedings;
Provisional Orders are no longer limited to 28 days;
cross examination of child witnesses in ADVO proceedings by self-represented defendants is prohibited. This can only take place through a lawyer or “suitable person” appointed by the court;
a court can make a final ADVO in the absence of the PINOP and/or the defendant;
Police must be notified and given standing in relation to any application to vary a police-initiated ADVO;
a defendant can no longer apply to revoke an expired final ADVO (this has a significant impact for individuals wanting to reobtain a firearms license);
a new costs provision expands current restrictions on costs orders against police in ADVO matters.
New Plain English Apprehended Domestic Violence Orders (ADVO) will also roll out state-wide on 3 December 2016.
Attorney General Gabrielle Upton stated:
“these new ADVOs will help break the cycle of violence by using clear and simple language so there is no excuse for breaching the order we have removed all the complex legal jargon and spelled out a defendant’s obligations in Plain English, so they can no longer claim they didn’t understand the meaning or consequences of the ADVO”.
The new ADVO is also being translated into 29 different languages to assist people whose first language is not English. In addition, the penalties for breaching an order, including up to two years in prison, have been moved to the top of the document so it’s now the first thing perpetrators see.
If you have been served with an ADVO or APVO it is extremely important that you obtain specialised criminal law advice from an experienced criminal lawyer.