Reading the conditions on your order
An apprehended violence order is a list of things you must not do. This guide explains which conditions are in every order, which ones a court adds for a particular matter, and how people breach them without meaning to.
General information, not legal advice. This page sets out how the law generally applies. It does not take account of your circumstances, and you should get advice about your own situation before acting on it. The official sources this page is written from are listed on it; where they differ from anything here, they are the authority.
Section 36 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) puts the same three prohibitions in every apprehended violence order. They cover assaulting or threatening, stalking, harassing or intimidating, and destroying or damaging property or harming an animal.
Everything else on your order is an additional condition, chosen for your matter. Two orders made in the same courtroom on the same morning can require entirely different things.
Every condition binds you from the moment you are served or told about the order. Contravening one knowingly is a criminal offence under section 14 of the same Act.
The three prohibitions in every order
Section 36 of the Act provides that every apprehended violence order is taken to specify that the defendant is prohibited from doing three things. They are there whether or not they are printed prominently, and they cannot be negotiated away.
They are that the defendant must not assault or threaten; must not stalk, harass or intimidate; and must not intentionally or recklessly destroy or damage any property, or harm an animal, belonging to or in the possession of the protected person.
Each of those prohibitions protects the protected person and also a person with whom the protected person has a domestic relationship. In a household that ordinarily reaches the children and other family members, even where they are not separately named on the order.
The words are broader than they look. Intimidate and harass cover conduct that involves no physical contact at all, including repeated messages, and conduct through other people. Damage to property is included even where nobody was there to see it.
These three are the floor, not the whole order. What changes daily life is usually one of the additional conditions below.
The additional conditions a court can add
Beyond the mandatory prohibitions, the court can impose the prohibitions and restrictions it considers necessary for the protection of the protected person. Which ones are included depends on what is alleged and what is sought.
The commonest are about contact: an order not to approach or contact the protected person, sometimes with an exception such as contact through a lawyer or for arrangements about children.
Then there are conditions about places: not to enter or approach a residence, a workplace or a school, or not to go within a stated distance of one. An address named on the order matters even if the protected person is not there at the time.
There are conditions about alcohol and drugs: not to approach the protected person, or a place named in the order, within a stated period after drinking alcohol or taking an illicit drug.
And there are conditions about other people and property: not to damage or interfere with property, or not to approach or contact a family member of the protected person.
Read the ones on your own order. NSW Police publish a plain description of the conditions that can be included, and it is a useful cross-check against what you have been handed.
- Who exactly is protected, including whether any child is named.
- Whether all contact is prohibited, or only some kinds of contact.
- Whether there is an exception for contact through a lawyer, or for arrangements about children.
- Every address, school or workplace named in the order.
- Any distance you must keep from a place or a person.
- Any condition about alcohol or drugs, and the period it refers to.
- The date the order starts, and the date it ends.
How people breach an order without meaning to
Conditions are contravened in ordinary situations, not only in violent ones. Five are worth planning around.
The first is contact after the protected person makes contact first. If a condition prohibits contact, it binds you whoever starts it, and their agreement does not lift it. A reply to a message is contact. So is answering a call.
The second is going somewhere named on the order: a house to collect belongings, a school at pick-up time, a shopping centre near an excluded address, a workplace. Habit does the work here, which is why arrangements have to be changed deliberately.
The third is contact through another person. Asking a friend, a relative or a child to pass on a message can be a contravention, and passing messages through children is both a legal problem and a bad idea for the child.
The fourth is social media: commenting, tagging, following, or posting about the protected person. It is contact, and it is a written record of contact.
The fifth is an arrangement the two of you have made privately because the order no longer matches your lives. An order is not a private agreement, and both of you agreeing to ignore it protects neither of you.
If a condition is unworkable, apply to change it. An order can be varied by the court on application, and that is the difference between an inconvenience and a criminal charge. See variations.
When the conditions start, and how long they last
Conditions in a provisional or interim order apply from the moment you are served or otherwise told about the order by police. Not from the court date. Not from when you have read it properly.
A final order applies from when it is made and runs for the period the court sets. That period is stated in the order, so read the dates on your own paperwork rather than relying on what somebody told you at court.
An order can also be varied or revoked before it expires, on an application to the court. Until it is, the version in your hand is the version that binds you.
If you do not understand a condition
Ask, and ask before the situation arises rather than afterwards. A condition that seems to have an obvious meaning often has an edge that matters: whether an exception covers text messages as well as calls, whether a distance is measured from a boundary or a building, whether an arrangement about children survives a no-contact condition.
Do not ask the protected person, and do not ask them to confirm an interpretation. That contact is itself capable of being the contravention.
Do not rely on what somebody was told about a different order. Orders differ, and a condition that is in your friend’s order may not be in yours, or may be worded differently.
Keep the order with you, in your phone as well as on paper. People are charged for going somewhere they had forgotten was named on a document they left in a drawer.
What usually happens
Read every page on the day you are served
Including the conditions page and the schedule. The conditions are in force already.
List the places and the people named
Addresses, schools, workplaces, and every person protected by the order. Write them down and keep the list with you.
Change the routines that would take you near them
Your route to work, where you shop, where you collect the children. Change them deliberately rather than relying on habit.
Stop contact of every kind if the order says so
Calls, messages, social media, messages through other people, and replies to messages sent to you.
Ask about anything you are unsure of, before it happens
A question to a lawyer costs an hour. A contravention charge costs a great deal more than that.
Common questions
Which conditions are on every AVO?
The three in section 36 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW): not to assault or threaten, not to stalk, harass or intimidate, and not to intentionally or recklessly destroy or damage property or harm an animal belonging to or in the possession of the protected person. They protect the protected person and also a person with whom the protected person has a domestic relationship.
Can I ask for a condition to be removed?
You can ask the court to vary an order, and additional conditions are exactly what such an application deals with. The three mandatory prohibitions are in every order and cannot be removed. Until the court makes a change, every condition applies.
Does the order stop me going to my own house?
If the order names that address, then yes, it can. Ownership and tenancy do not override a condition. Collecting belongings can often be arranged properly, including with police present, and if you need longer-term access the answer is an application to vary the order.
Is sending a message through a friend a breach?
It can be. Where a condition prohibits contact, contact through another person is still contact. Asking someone to pass on a message, or arranging for someone else to make contact, is one of the ways people are charged.
What about social media?
Commenting on a post, tagging, following or messaging are all capable of being contact, and everything on a platform is a record. If a no-contact condition applies, the safest course is no interaction of any kind, including through mutual accounts.
The protected person asked me to come over. Is that allowed?
No. An invitation from the protected person does not suspend a condition, and acting on one is a contravention. A condition is changed through the proper route for the order you are under, not by agreement between you. Get advice about which route applies to your order.
What if I breach a condition by accident?
Get legal advice straight away, and do not contact the protected person about it. Whether a contravention was knowing is part of what a court looks at, and what you do next can matter a great deal. See alleged breach.
Related
Unsure what a condition means?
Ask before the situation comes up, not afterwards, and ask a lawyer rather than the protected person. Bring the order itself — the wording is what matters.