Apprehended Violence Order (AVO) Guidelines

These are the guidelines to the AVO policies and are intended to be read with the AVO policies. The guidelines are intended to provide guidance on how the policies are to be applied by setting out certain requirements which need to be observed when determining applications and administering grants of legal aid.

The following are the relevant definitions for the purpose of the Apprehended Violence Order policies.

  • Apprehended domestic violence order proceedings and apprehended personal violence order proceedings include variation or revocation proceedings.
  • A protected person means the person for whose protection an apprehended violence order is sought or made, or the person whom Legal Aid NSW is satisfied is a victim of domestic violence.
  • A defendant is a person against whom an apprehended violence order is made or sought.
  • Associated apprehended domestic violence order proceedings are current proceedings involving the same parties including proceedings concluded within the previous 3 months.
  • A relative is a relative within the meaning of section s6 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

A ‘domestic relationship' is defined under s 5 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

For the purposes of the Legal Aid NSW apprehended domestic violence order policy a person is in a ‘domestic relationship' when:

  • the person is or has been married to the other person,
  • the person is or has been in a de facto relationship within the meaning of the Property (Relationships) Act 1984 with the other person,
  • the person has or has had an intimate relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature,
  • the person is living or has lived as a long term resident* in the same residential facility as the other person,
  • the person has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person
  • the person is or has been a relative of the other person, or
  • the person is an Aboriginal person or a Torres Strait Islander, who is or has been part of the extended family of the other person, according to the Indigenous kinship system of the person's culture, or
  • two persons also have a domestic relationship with each other for the purposes of this Policy if they have both had a domestic relationship of a kind set out above with the same person.

*This does not include a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 (NSW) or a detention centre within the meaning of the Children (Detention Centres) Act 1987 (NSW).

Definition of 'victim of domestic violence' in an ADVO matter

Legal Aid NSW will be satisfied that an applicant for legal aid in an ADVO matter is a victim of domestic violence if any of the following criteria are satisfied:

  • the application for legal aid is supported by a Domestic Violence Practitioner Scheme solicitor or Women's Domestic Violence Court Advocacy Service co-ordinator, health worker, domestic violence specialist worker, community access worker (funded by the Commonwealth Government), independent advocate for people with disabilities, social worker, tenancy worker (funded by Government), homeless or housing worker (funded by Government) counsellor approved by Victims Services or psychologist, or
  • the applicant for legal aid has previously been an applicant in an ADVO matter, or
  • the applicant for legal aid is currently living in a refuge or in alternative accommodation due to a domestic violence situation, or
  • the applicant for legal aid provides evidence to support their application.
Exceptional circumstances in an ADVO matter

Legal Aid NSW will be satisfied there are exceptional circumstances where the applicant for legal aid is an Aboriginal woman.

Legal Aid NSW may consider there are exceptional circumstances where the applicant for legal aid is 'at special disadvantage'.

Definition of 'at special disadvantage' under the ADVO policy

An applicant for aid is at special disadvantage if they are:

  • a child or acting on behalf of a child, or
  • a person who has substantial difficulty in dealing with the legal system by reason of a substantial:
    • mental health impairment 
    • cognitive impairment, or
    • physical disability.
Applying the 'at special disadvantage' test

The determination about whether the applicant satisfies the 'at special disadvantage' test must be made in the context of legally aided clients generally. In other words, a practitioner certifying that an applicant is 'at special disadvantage' must be satisfied that the applicant's circumstances are exceptional when considered against other legally aided clients. For applicants to be deemed 'at special disadvantage', they must satisfy the two limbs of the test: that is, they must have substantial difficulty dealing with the legal system because of a substantial disability.

Note: This is intended to be a guidance on how the exceptional circumstances test may be applied and is not exhaustive.

Exceptional circumstances in an APVO matter

When determining an application for legal aid to defend an APVO, Legal Aid NSW will be satisfied there are exceptional circumstances where the applicant for legal aid is an Aboriginal woman.

Legal Aid NSW may consider there are exceptional circumstance if:

  • the applicant for legal aid is a protected person in associated apprehended domestic violence proceedings, or
  • Legal Aid NSW is satisfied the applicant for legal aid is 'at special disadvantage'.
Definition of 'at special disadvantage' under the APVO policy

An applicant for aid is at special disadvantage if they are:

  • a child or acting on behalf of a child, or
  • a person who has substantial difficulty in dealing with the legal system by reason of a substantial:
    • mental health impairment 
    • cognitive impairment, or
    • physical disability.
Applying the 'at special disadvantage' test

The determination about whether the applicant satisfies the 'at special disadvantage' test must be made in the context of legally aided clients generally. In other words, a practitioner certifying that an applicant is 'at special disadvantage' must be satisfied that the applicant's circumstances are exceptional when considered against other legally aided clients. For applicants to be deemed 'at special disadvantage', they must satisfy the two limbs of the test: that is, they must have substantial difficulty dealing with the legal system because of a substantial disability.

Note: This is intended to be guidance on how the exceptional circumstances test may be applied and is not exhaustive.