Domestic Violence & ADVO’s in Same Sex Relationships

Regrettably, instances of domestic violence may occur within some same sex relationships. While the prevailing association of violence with men is understandable, given that the majority of violent crimes are committed by men, it is crucial to recognize that violence can also manifest in relationships among lesbians, be it in physical, mental, or emotional forms.

A piece in the Sydney Morning Herald has labelled domestic violence within the gay community as a “silent epidemic” and estimates that over 30% of same-sex relationships experience violence. According to the article, reporting such violence can feel akin to coming out for a second time, and many gay and lesbian couples contemplate how they will be treated if they choose to involve the police.

Fortunately, there are specialized training programs for police officers responding to domestic violence calls involving gay and lesbian individuals. These officers actively participate in community events, such as the Mardi Gras Parade, and are often members of the LGBTQ+ community themselves. Their training equips them to understand the unique dynamics and sensitivities of same-sex relationships, enabling them to respond more effectively to incidents of domestic violence.

In cases where a partner has assaulted, damaged property, or there is a fear of violence, individuals have the option to make a complaint to the police, who can then apply for an Apprehended Domestic Violence Order (AVO) on their behalf[ii].

Understanding AVO and APVO

An AVO or Apprehended Domestic Violence Order is a court-issued order designed to protect an individual, setting out restrictions on the behaviour of another person with whom they may be in a relationship, live with, or are related to. The order refers to this individual as someone with whom the protected person has a “domestic relationship”.

Another form of such an order is an Apprehended Personal Violence Order (APVO). This order applies when the people involved are not related or do not have a domestic or intimate relationship, such as in cases of neighbours or when someone is being stalked, intimidated, harassed, or threatened.

AVO and APVO Orders

AVOs typically include “standard orders” and “additional orders,” which vary based on the circumstances of the case. The three standard orders always included in an AVO are that a person must not assault, molest, harass, threaten, or interfere with the protected person; intimidate the protected person; and stalk the protected person. These conditions may also extend to anyone in a domestic relationship with the protected person, including children or other family members living with them.

Additional orders that may be included in an AVO include restrictions on approaching the protected person within a certain distance, entering specific places where the protected person may live or work, approaching the protected person or specified places after consuming alcohol or taking illegal drugs, and not damaging property belonging to the protected person.

There are free legal advice services available for those unable to afford a solicitor, such as the Women’s Domestic Violence Court Advocacy Services and other city-specific services. Police also have Domestic Violence Liaison Officers (DVLOs) to assist victims of domestic violence.

Federal Circuit and Family Court Violence Orders

The Family Court and Federal Circuit Court can issue protection orders similar to an AVO. In the case of a breach, the protected person needs to make an application to the court, known as a Contravention Application.

For same sex individuals with children, the children may be included in the order to protect them.

Consequences of an AVO

Once an AVO is in place, it may be challenging to maintain a normal relationship with the person against whom the AVO is made. The AVO may specify restrictions on contact or residence with the protected person. If an AVO is made against someone, the person who sought the order may fear resuming a normal relationship, as any disagreement might be considered a criminal offense if it involves intimidation.

In many cases, it is advisable to permanently sever contact with the person for or against whom the AVO order is made, unless there are compelling reasons, such as shared children.

Basis for an AVO

The “burden of proof” for an AVO is on the “balance of probabilities.” This means that it is more probable than not that the incident in question occurred, and the protected person has reasonable grounds to fear harassment, stalking, intimidation, or harm. This burden is less than that required for criminal matters, where the standard is “beyond reasonable doubt.”

The Process

If the court finds the complaint not credible, not serious enough, or judges that the fears held by the protected person are unreasonable, the AVO may be denied. However, in many cases, courts err on the side of caution and may issue an AVO on an interim basis until a final hearing takes place, and all evidence is presented.

For those without sufficient funds to defend an AVO, options include consenting to the AVO on a “without admissions” basis for a specific period or agreeing to the complaint and the terms of the AVO for a final order.

Before making any decisions regarding an AVO, seeking legal advice is crucial, as the consequences can be significant, impacting employment and parenting rights in Family Court proceedings.

Asking for AVO Withdrawal

If someone wishes to request the withdrawal of an AVO made against them, they can write a letter, termed “representations,” to the local area commander of the police station where the AVO application was made. The police officer who made the application (Prosecutor or Officer in Charge) should be copied on the letter. The police typically take around 4 to 6 weeks to consider such representations, with the response sent to both the individual and the police prosecutor handling the matter.

Breach of an AVO

While an AVO and APVO are not criminal charges, a breach of these orders can lead to criminal consequences. Breaching an AVO carries penalties of up to two years in jail and/or a substantial fine[v]. Once an AVO is issued, it is rarely withdrawn by the police, as there is a strict approach to all forms of domestic violence.

AVOs and Your Job

Despite not being a criminal conviction, AVOs can impact employment prospects. If someone works with children and is subject to a “working with children check,” a final AVO that involves a child will appear on such a check, potentially jeopardizing current or future employment.

Those with an AVO made against them cannot have a firearms license during the period the AVO is in force and for 10 years after it ceases. For individuals working in the security industry or the police force, their employment may be at risk.

AVOs and the Federal Circuit and Family Court

In Family Court proceedings, AVOs are considered, potentially influencing shared parental responsibility and property distribution based on the history of domestic violence. Exceptions exist for individuals related to a defendant in criminal matters.

In summary, understanding the complexities of AVOs is crucial, as they play a significant role in addressing and preventing domestic violence within relationships, including those within the lesbian community. The legal processes involved, potential consequences, and the broader implications on employment and family court matters emphasize the importance of seeking informed legal advice when dealing with such sensitive issues.

Barker Evans is also the exclusive legal partner for Rainbow Families, assisting the LGBTQI+ community.

Each case is unique, so if you are in a same sex de facto relationship seek legal advice from a top same sex lawyer to ensure you understand your rights and obligations fully.

Barker Evans are the best family lawyers in Sydney with leading LGBTQI+ family law experience and a specialist background in same sex parenting and property cases.