Understanding What’s At Stake With ADVO Charges
Common assault charges and Apprehended Domestic Violence Orders (ADVOs) are among the most frequently heard domestic violence matters in NSW Local Courts. On the surface, they can appear straightforward. In practice, they rarely are.
Personal relationships, miscommunication, false allegations and emotional volatility all play a role in how these situations unfold. In some cases, the person who called the police can end up being charged. In others, the person served with an ADVO may not have done what the other party claims. Even where there is some basis for a charge, the circumstances often tell a more complicated story than the police facts suggest.
A conviction for common assault or a breach of an ADVO can affect your employment, your ability to travel, your reputation, and your parenting arrangements. Getting the right legal advice early gives you the best chance of a good outcome.
Key Takeaways
- Common assault is a criminal offence under section 61 of the Crimes Act 1900 (NSW). The maximum penalty is 2 years imprisonment.
- An ADVO is a civil order, not a criminal conviction, but breaching one is a serious criminal offence.
- Penalties for breaching an ADVO range from a maximum of 2 years to 5 years imprisonment or a fine (or both), depending on the type of breach.
- Self-defence is a complete defence to common assault, if established, the person must be found not guilty.
- Courts can dismiss common assault charges without recording a conviction, even after a finding of guilt, under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Being charged does not mean you will be convicted. Early legal representation makes a significant difference.
- O’Brien Criminal & Civil Solicitors regularly appear in Local Courts across Sydney and NSW in common assault and ADVO matters.
At a Glance: Act Quickly If You Are Charged With Assault Or An ADVO
- Facing a common assault charge, with or without an ADVO
- Served with an ADVO, even if you believe it is unjust or based on false allegations
- The person who called the police but found yourself charged instead
- At risk of breaching or have already breached an ADVO
- Unsure whether to plead guilty or contest the charge
Call O’Brien Criminal & Civil Solicitors on 02 9261 4281 for prompt legal advice.
What Is Common Assault?
Common assault is a criminal offence under section 61 of the Crimes Act 1900 (NSW). It applies where a person assaults another without causing actual bodily harm. It is the least serious assault offence under the Act, but it is also by far the most common.
NSW criminal law recognises two forms of common assault:
Physical assault covers any unwanted physical force applied to another person. For example, pushing, slapping, grabbing, spitting, physically restraining someone, or throwing an object. The offence does not require injury or pain.
Psychic assault covers threatening words, gestures or conduct that cause another person to genuinely fear immediate violence. For example, raising a fist in a threatening manner or advancing aggressively towards someone. No physical contact is required.
In both cases, the prosecution must prove every element of the offence beyond a reasonable doubt, including that the act was intentional or reckless, and that there was no lawful excuse.
How Common Assault Differs from More Serious Charges
Common assault sits at the lower end of the assault spectrum. Where the alleged conduct causes injury, more serious charges may apply:
Assault occasioning actual bodily harm (s 59) applies where injuries are more than transient or trifling. Things like bruising, cuts, or swelling. There is a maximum penalty of 5 years imprisonment, or 7 years if committed in company.
Reckless causing grievous bodily harm (s 35) applies where the assault results in very serious injury, such as permanent disfigurement, broken bones, or lasting physical harm. Maximum penalty: 10 years, or 14 years in prison.
More serious assault charges are generally dealt with in the District Court rather than the Local Court.
Penalties for Common Assault
The maximum penalty for common assault is 2 years imprisonment and/or a fine of up to 50 penalty units in the Local Court. Courts have broad sentencing discretion and will weigh up:
- The objective seriousness of the conduct
- Whether the person has a prior criminal record, or whether it is a first offence
- Evidence of provocation, self-defence, or other mitigating circumstances
- The person’s age, character, health, and mental health
- Whether prior offences include domestic violence matters, which can be treated as an aggravating factor
For a first offence, courts will often consider a non-conviction outcome. Under Section 10 of the Crimes (Sentencing Procedure) Act 1999, a court can dismiss a charge without recording a conviction even after a finding of guilt. This may be an unconditional dismissal, or a conditional release order requiring good behaviour for up to 2 years.
Other sentencing options include fines, community correction orders (CCOs), and intensive correction orders (ICOs). In the most serious cases, full-time imprisonment may be imposed. Whether you plead guilty or contest the charge, skilled legal representation significantly influences the outcome.
Understanding ADVOs
An ADVO is a civil protection order made under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). It is designed to protect a person from violence, threats, harassment, intimidation or stalking by someone they have, or have had, a domestic relationship with.
Who Is In A “Domestic Relationship”?
Under section 5 of the Act, a domestic relationship includes current or former spouses or de facto partners, family members (including extended family), people who have or have had an intimate personal relationship, people who live or have lived in the same household, carers, and people connected through Aboriginal or Torres Strait Islander kinship systems.
How ADVOs Are Made
When police attend a domestic incident, they will assess the situation and may choose to lay criminal charges, apply for an ADVO, or both. Under section 49 of the Act, police must apply for an ADVO where they suspect or believe a domestic violence offence has been committed, subject to limited statutory exceptions. This means an ADVO can be imposed even if the alleged victim does not want one.
The court will make an ADVO if it is satisfied on the balance of probabilities that the protected person has reasonable grounds to fear domestic violence, intimidation or stalking. A person aged 16 or older may also apply for an ADVO on their own behalf at their local court.
What Conditions Can An ADVO Include?
Every ADVO contains mandatory conditions that the defendant must not assault, threaten, stalk, harass or intimidate the protected person, and must not intentionally or recklessly damage the protected person’s property.
Courts may also impose additional conditions such as not approaching the protected person’s home, workplace or school; not making contact directly or through a third party; surrendering any firearms licences; and being excluded from the person’s own home, even if they own or lease the property.
An ADVO Is Not a Criminal Conviction
An ADVO is a civil order and does not appear on a person’s criminal record. That said, its practical consequences are significant. An ADVO can affect where you live, your parenting arrangements, your employment, and your firearms licence.
Breaching an ADVO
Breaching an ADVO is a criminal offence under section 14 of the Crimes (Domestic and Personal Violence) Act 2007. A breach occurs when a person knowingly fails to comply with any condition of their order.
Following reforms under the Crimes (Domestic and Personal Violence) and Other Legislation Amendment Act 2024, the penalties are:
| Type of Breach | Section | Maximum Penalty (imprisonment and/or fine) |
| Standard breach | s14(1) | 2 years imprisonment and/or 50 penalty units (currently $5,500) |
| Intentional breach causing harm or fear | s14(1A) | 3 years imprisonment and/or 100 penalty units (currently $11,000) |
| Persistent breach — 3 or more breaches within 28 days | s14(1C) | 5 years imprisonment and/or 150 penalty units (currently $16,500) |
Where a breach involves an act of violence, the court must impose a sentence of imprisonment unless it decides otherwise and provides reasons.
One point that surprises many people: if the protected person initiates contact or invites you to breach the order, you remain legally responsible for complying. The protected person cannot waive the conditions. Only the court can vary or revoke an ADVO.
Defences to Common Assault
Being charged is not the same as being found guilty. The prosecution must prove every element of the offence beyond reasonable doubt. Several defences may apply depending on your circumstances.
Self-Defence
Self-defence is the most commonly raised defence to common assault. Under Section 418 of the Crimes Act 1900, a person is not criminally responsible if they acted in self-defence. The court applies a two-part test:
Subjective test: Did the person genuinely believe their conduct was necessary to defend themselves or another person?
Objective test: Was their response a reasonable response in the circumstances as they perceived them?
Once self-defence is raised, the prosecution must disprove it beyond reasonable doubt. This is usually done either by showing the person did not hold that belief, or that their response was not reasonable. Self-defence is a complete defence: if established, the person must be found not guilty.
Other Defences
Duress: The person was forced to act because of a serious threat from another person.
Necessity: The conduct was necessary to prevent a greater harm.
Consent: The other person consented to the physical contact (this arises in limited circumstances in common assault cases).
Identity: The person denies being the one who committed the alleged act.
Factual dispute: The incident did not occur as described, or the allegations are false or exaggerated.
The strength of any defence depends on the available evidence. A thorough review of witness statements, police facts, CCTV footage and the credibility of the complainant’s account is essential before deciding how to approach the case.
Real-World Scenarios
Scenario 1: The Person Who Called for Help Gets Charged
A woman calls the police after a violent incident involving a family member. Despite being the one who sought assistance, police form the view that she was also involved in the altercation and charge her with common assault, serving her with an ADVO application at the same time.
This is not an unusual scenario. People who contact the police during domestic incidents can find themselves charged as a result. With proper legal representation, charges in these circumstances are frequently contested and dismissed.
Scenario 2: An ADVO After Separation
A man is served with an ADVO following the breakdown of his relationship. He believes the application is based on exaggerated or false allegations made during a difficult separation. Because the order is civil, it is made on the balance of probabilities, a lower threshold than the criminal standard. However, it can still be contested. A lawyer can help gather evidence, cross-examine witnesses, and make submissions against the order being made or against restrictive conditions being imposed.
Scenario 3: An Unintentional Breach
A man subject to an ADVO receives a message from the protected person asking to talk. He responds. Even though the contact was initiated by the protected person, he has technically breached the ADVO. Police are called, and he is charged under section 14. Understanding what constitutes a breach and the consequences before it happens is essential for anyone subject to an ADVO.
Case Study: Wrongly Charged After Calling the Police
At O’Brien Criminal & Civil Solicitors, we regularly act for clients where the facts are not what the charge sheet suggests.
In one recent case, our client was a young woman who contacted police after a violent domestic incident involving her father. Despite being the person who sought help, police charged her with common assault and served her with an ADVO application.
Our legal team ran a full-day, defended hearing, carefully examining the evidence and cross-examining witnesses. The Magistrate found our client not guilty, dismissed the ADVO, and awarded legal costs in her favour.
Remember, being charged does not mean you will be convicted. This case is a reminder of how important skilled legal representation is from the outset.
Read our criminal defence case studies
Frequently Asked Questions
Can police apply for an ADVO even if the alleged victim doesn’t want one?
Yes. Under section 49 of the Crimes (Domestic and Personal Violence) Act 2007, police are required to apply for an ADVO where they believe a domestic violence offence has been committed. The alleged victim’s wishes do not override this obligation.
Can I contest an ADVO?
Yes. You can appear in court and contest the making of the order, or contest specific conditions. An experienced criminal lawyer can help you gather evidence, cross-examine witnesses, and make submissions to the court.
Does an ADVO show up on my criminal record?
No. An ADVO is a civil order and does not appear on a criminal record. However, if you breach the order, that breach is a criminal offence and will appear on your record if you are convicted.
Can a Section 10 dismissal avoid a conviction for common assault?
Yes. Under section 10 of the Crimes (Sentencing Procedure) Act 1999, the court can dismiss a charge without recording a conviction, even after a finding of guilt. This is available for first or minor offences where the court is satisfied a conviction is not warranted given the person’s character and the circumstances of the offence.
What should I do if I am about to breach an ADVO?
Do not make contact, even if the protected person reaches out to you first. If you need the conditions changed, contact a lawyer immediately and apply to the court to vary the order. Only the court can change the terms of an ADVO.
What if the allegations against me are completely false?
False allegations in domestic violence matters are more common than many people realise, particularly during separations or custody disputes. Your lawyer can scrutinise the evidence, identify inconsistencies in the complainant’s account, and run a defended hearing to challenge the prosecution’s case.
How O’Brien Criminal & Civil Solicitors Can Help
Our experienced criminal defence lawyers appear regularly in Local Courts across Sydney and NSW in common assault and domestic violence and AVO matters. Defending these charges requires careful, methodical legal work:
- Detailed review of police facts, CCTV footage, and witness statements
- Assessing the credibility and reliability of the complainant’s evidence
- Identifying available defences, including self-defence and factual disputes
- Negotiating with police prosecutors to have charges withdrawn or downgraded where appropriate
- Preparing and running defended hearings in the Local Court
- Making strong sentencing submissions to achieve non-conviction outcomes, including Section 10 dismissals and conditional release orders
We have helped clients avoid convictions, have ADVOs dismissed, and in a number of cases, recover legal costs from police or prosecutors. Whatever your situation, we work to achieve the best available outcome.
Call O’Brien Criminal & Civil Solicitors on 02 9261 4281 or enquire online for prompt legal advice. In some cases, we can arrange an initial phone consultation at no charge.
This fact sheet provides general legal information only and does not constitute legal advice. Every case is different. If you have been charged with a criminal offence or served with an ADVO, seek independent legal advice about your specific circumstances promptly.
