Family violence orders and the criminal charge that comes after.

Most clients arrive at our office holding two pieces of paper. The first is a provisional or interim apprehended domestic violence order. The second is a court attendance notice for a criminal charge that arose out of the same incident. Sometimes the criminal charge is a common assault. Sometimes it is the catch-all of stalking or intimidation under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Either way the two proceedings now run in parallel, listed in the same court, often on the same day, and the choices made in one shape the other. This note sets out how the parallel track works and the decisions you should make before the first mention.

Two proceedings, one set of facts.

An apprehended domestic violence order is a civil order. The standard of proof is the balance of probabilities. A criminal charge is a criminal proceeding. The standard of proof is beyond reasonable doubt. The same alleged facts can fail to support a criminal conviction and still support an order; that gap in the standards is the most important practical feature of running these two proceedings together.

The AVO application is made by the police, or by the protected person as a private application. The criminal charge sits on its own brief, prosecuted by the police prosecutor in the Local Court or, on Table 1 elections and indictable matters, by the Office of the Director of Public Prosecutions in the District or Supreme Court. The two proceedings will usually be listed together at first mention. They do not have to be resolved together, and most of the strategic work in a defended matter turns on how and when they separate.

The provisional order, the interim order, the final order.

Most clients meet the system at the provisional stage. Under sections 25 to 28A of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) a police officer can apply by telephone or other communication device to a senior police officer, and the senior officer can make a provisional order if satisfied there are reasonable grounds for it. The order is in force from the moment it is made and binds the defendant once they are served. The provisional order is returnable to the Local Court on a specified return date for the substantive application.

At first mention the magistrate is empowered to make an interim court order if the magistrate considers it necessary or appropriate. An interim order operates until the application is finally determined and is, in substance, identical to a final order in effect. The interim order is the most common form of AVO our clients live under for the period of the criminal proceeding.

A final order can be made after a contested hearing, or it can be made on a consent basis. The single most important framing for an accused person is the consent without admissions option in section 78. A defendant can consent to a final order being made without admitting any of the matters in the application. The order looks identical to a contested final order, but the defendant has not conceded any fact that could later be used in the criminal proceeding. Where the criminal charge is to be defended, consent without admissions is almost always the right answer to the AVO.

The conditions on the order.

Every AVO carries the three mandatory conditions in section 36. The defendant must not assault, threaten, stalk, harass or intimidate the protected person or any person with whom the protected person has a domestic relationship. The defendant must not intentionally or recklessly damage their property or harm an animal in their possession. These three conditions are automatic. They appear on every order and they cannot be removed.

The additional conditions sit in section 35. The most commonly imposed are the non-approach conditions (no approach within a stated distance, no approach to the protected person's residence or workplace or schools the children attend), the no-contact conditions (no communication direct or indirect, save through a lawyer or in writing for the purpose of contact arrangements with the children), and the no-alcohol-or-drugs condition (no approach within 12 hours of consuming intoxicating liquor or illicit drugs). The list in section 35 is not exhaustive. The magistrate can impose any condition the magistrate considers necessary or desirable.

Two of the section 35 conditions deserve close attention before you consent. The non-approach to the family home effectively excludes the defendant from a residence the defendant may own or co-tenant. The no-contact condition can sever the defendant's relationship with any children of the relationship for the period of the order. Where children are involved, a carve-out for contact mediated by a third party or by family-law orders should be sought before consent is given. The Act preserves the operation of family law parenting orders; the practical position is that the AVO and the parenting order should be aligned, and where they are not, the AVO controls the conduct of the defendant.

The contravention offence in section 14.

A breach of an AVO is a criminal offence under section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The structure of the section repays close reading.

• Section 14(1). Knowingly contravening a prohibition or restriction specified in an AVO. Maximum penalty 2 years imprisonment or 50 penalty units, or both.
• Section 14(1A). Knowingly contravening an AVO with the intention of causing the protected person physical or mental harm, or the protected person to fear for their safety or the safety of another person. Maximum penalty 3 years imprisonment or 100 penalty units, or both.
• Section 14(1C). A persistent-breach offence. Where the defendant has knowingly contravened the same or a related order on at least two other occasions within the 28 days before the contravention, and a reasonable person would consider the conduct would be likely to cause the protected person physical or mental harm or to fear for their safety, the maximum penalty rises to 5 years imprisonment or 150 penalty units, or both.

The teeth in section 14 sit at subsection (4). Unless the court otherwise orders, a person convicted of an offence against subsection (1), (1A) or (1C) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person. The court has the discretion to depart from that presumption, but the discretion has to be reasoned. A non-custodial outcome on a violent contravention is achievable, but only on a properly prepared subjective case.

The bail consequences are not hypothetical.

The Bail and Other Legislation Amendment (Domestic Violence) Act 2024 (NSW) added a new category of "serious domestic violence offence" to the show-cause regime in section 16B of the Bail Act 2013 (NSW). The definition catches an offence under Part 3 of the Crimes Act 1900 (NSW) with a maximum penalty of 14 years or more committed against an intimate partner. That covers most of the offences our clients are charged with in the domestic-violence space: section 33 wound or cause grievous bodily harm with intent, section 35 reckless wounding or reckless grievous bodily harm, section 37 choke / suffocate, sexual offences, and the aggravated assault provisions. Where the charge is a serious domestic violence offence, the burden shifts: the defendant must show cause why detention is not justified before the unacceptable-risk test in section 19 of the Bail Act 2013 is even reached.

Electronic monitoring became a presumptive bail condition for serious domestic violence offences from 1 July 2024. The condition is mandatory unless the court is satisfied that, in the interests of justice, sufficient reasons exist not to impose it. Before any bail application is run, we will tell you whether the court is likely to require electronic monitoring as the condition that gets you released, and whether the residence you are proposing as a bail address is capable of taking the device.

The complainant who does not wish to proceed.

A common pattern is that the protected person tells police, sometimes within days of the original incident, that they do not wish to proceed. The police are not bound by that view. The decision to continue or to withdraw is the prosecutor's. The protected person's preference is a factor, but not a determinant.

Where the protected person is unavailable or unwilling to give oral evidence, the prosecution will often seek to lead the complainant's recorded statement under section 65 of the Evidence Act 1995 (NSW). The hearsay rule does not apply to evidence of a previous representation if the representation was made under a duty, made when or shortly after the asserted fact occurred in circumstances making fabrication unlikely, or made in circumstances making it highly probable that the representation is reliable. The first body-worn-video statement at the scene is the most commonly used route. The admission of that statement turns on the particular facts; objections are available and are run on the voir dire.

If the complainant is called and gives evidence inconsistent with their earlier statement, section 38 of the Act allows the party that called them to cross-examine on the inconsistency. That is the prosecutor cross-examining the complainant who said one thing in the recorded statement and now says another in the witness box. Section 38 changes the dynamics of a contested hearing, and the prospect of it is one of the conversations we have early in the matter.

Living with the order while the criminal case is on foot.

The interim order is in force from service. The contravention offence is engaged from that moment. The criminal charge that brought you to court has not yet been resolved. For the period of the parallel proceedings, the conditions of the AVO control what you can do.

Three rules of thumb cover most of what goes wrong.

• The complainant cannot give you permission to breach. A text message saying "you can come over" is not consent to a breach. The order is binding on you, not on the complainant. If the protected person initiates the contact and you respond, the breach is still made out. Initiation is admissible context that affects sentence; it is not a defence.
• The lawyer carve-out is narrow. The standard non-contact condition allows communication through a lawyer. It does not allow your friend, sibling or new partner to pass messages on your behalf. Indirect contact through a third party is still contact. We will write to the protected person's lawyer where contact is necessary; nothing else.
• The family-law track does not displace the AVO. Where children are involved and the family-law jurisdiction has made parenting orders, those orders prevail to the extent of any inconsistency. But changeovers should always be done in a way that does not technically breach the AVO. A clean handover at a neutral location, no conversation, no extended interaction, no text messages outside the agreed contact times.

Varying or revoking the order.

A final or interim AVO can be varied or revoked under section 73 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The application can be made by the defendant, by the protected person, or by the police. The court may vary the order by extending or reducing its term, by amending or deleting prohibitions or restrictions, or by adding further prohibitions or restrictions, if satisfied that in all the circumstances it is proper to do so. Section 73 also permits the court to decline to hear an application where there has been no change in circumstances and the application is, in substance, an appeal against the original order. Notice of any variation application brought by the defendant must be served on each protected person.

While the criminal proceeding is on foot the court will usually be reluctant to vary the AVO. The variation application is normally adjourned until the criminal matter is resolved. Once the criminal matter is resolved (by acquittal, by section 10 dismissal, by sentence) the variation application is the next step where the defendant wishes to restore conditions that are unworkable in the long term.

The sequencing that usually works.

For a defended criminal matter where the AVO has been served, the sequence we run, in most cases, is:

1. Consent without admissions to a final AVO at first mention, on the same conditions as the interim order. The civil proceeding closes. The criminal proceeding alone is on foot.
2. If a section 14 contravention charge is also live, defend the criminal proceeding on the brief. The reduced strategic surface (one case rather than two) materially improves the prospects of cross-examination and of cross-checking evidence.
3. After the criminal matter is resolved, apply to vary the AVO if conditions need to be relaxed. The application is more likely to succeed once a magistrate has the outcome of the criminal matter to consider.

That sequencing is not universal. Where the criminal charge will be pleaded to, or where the AVO is a private application unsupported by police, a contested final AVO hearing can make sense. We will tell you the sequence we recommend in your matter once we have read the brief.

One last note.

An apprehended domestic violence order is not, in the eyes of the law, a criminal record. A final AVO does not appear on a national police check the way a conviction does. The pages of the order, the conditions imposed, and the period of the order are visible to anyone applying for a working-with-children check, a security licence, or particular professional accreditations. Most clients can return to work once the AVO is resolved. The conviction risk lives in the section 14 contravention, the bail charge, and the substantive criminal proceeding the AVO arose from. Those are the proceedings we plan around.

This note is general information about New South Wales apprehended domestic violence orders and the criminal proceedings that often run alongside them. It is not legal advice for any particular case. The Crimes (Domestic and Personal Violence) Act 2007 (NSW), the Bail Act 2013 (NSW) and the Evidence Act 1995 (NSW) all change. For advice on a real matter, contact us through our contact page or phone 0421 717 019.

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