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When a relationship comes to an end, there can sometimes be lingering emotions and unresolved issues, which make it tempting to reach out to an ex-partner.

However, if you have an Apprehended Violence Order in place contacting your ex-partner could have serious criminal consequences.

Here’s what you need to know.

What are AVOs?

An Apprehended Violence Order (AVO) is a court order designed to protect a person from violence, threats or intimidation by another person. There are two types of AVOs:

  • Apprehended Domestic Violence Orders (ADVO): which are intended to protect people from violence or threats of violence from someone with whom they have or had a domestic relationship.
  • Apprehended Personal Violence Orders: which are intended to protect people from similar behaviour regardless of the relationship.

According to section 5 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) a person will be in a “domestic relationship” with another person if the person:

  • is or has been married to the other person, or
  • is or has been a de facto partner of that other person, or
  • has or has had an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, or
  • is living or has lived in the same household as the other person, or
  • is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person (not being a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 or a detention centre within the meaning of the Children (Detention Centres) Act 1987 ), or
  • has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person (subject to section 5A), or
  • is or has been a relative of the other person, or
  • in the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person’s culture.

Can I Contact My Ex?

If you have an ADVO in place, you will need to abide by the conditions of the order. Section 36 of the Act states that all orders must have the following mandatory conditions:

  • You must not assault or threaten the protected person or any other person having a domestic relationship with the protected person.
  • You must not stalk, harass or intimidate the protected person or any other person having a domestic relationship with the protected person intentionally.
  • You must not recklessly destroy or damage any property that belongs to or is in the possession of the protected person or any other person having a domestic relationship with the protected person.

However, it is also not uncommon to have further conditions placed on the order in relation to contact. This can include conditions that:

  • You must not approach the protected person or contact them in any way, unless the contact is through a lawyer.
  • You must not approach a school, childcare or any other place a person might attend.
  • You must not approach or be in the company of the protected person for at least 12 hours after drinking alcohol or taking illicit drugs.
  • You must not try to find the protected person except as ordered by a court.

If you have a condition on your ADVO not to contact the protected person you must follow it or else risk criminal consequences.

What If My Ex Contacts Me First?

You may still be in breach of an ADVO even if the protected person consents or reaches out to you first.

If your ADVO conditions prohibit contact, then you will not be committing an offence in breach of the order if you do not respond or reply. Responding or replying will amount to contact in breach of the ADVO and you can be arrested and charged.

If your ADVO conditions do not prohibit contact, then you will not be in breach of the order by replying provided anything done or said in response is not in breach of the mandatory orders in place in every ADVO.

Get legal advice before taking any further steps by way of responding and be sure to know what your ADVO conditions actually are.

It is important to keep any evidence of the contact, such as text messages, emails, or voicemails, as this can be used as evidence if the matter goes to court.

If you and your ex-partner wish to reconcile or remain in contact, either yourself or the protected person will need to make an application to the court to amend (vary) or revoke the AVO in place before contact can commence.

What Happens If I Breach the ADVO?

Knowingly contravening any of the conditions of an ADVO is offence under s14 of the Act. The maximum penalty for this offence is two years imprisonment and/or a fine of $5,500.

You may have a valid defence to a charge for breaching an ADVO if:

  • You were not aware of the conditions of the ADVO, either because it was not validly served or you were not in court when the order was made.
  • You contravened the ADVO in self-defence or defence another (such as your children) or defence of property.
  • You were under duress when you contravened the order.
  • You contravened the order within the context of a sudden and extraordinary emergency (necessity).

By Jarryd Bartle.

Published on 07/04/2023

AUTHOR Criminal Defence Lawyers Australia

Criminal Defence Lawyers Australia are Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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