Family Violence, Protection & AVO

In New South Wales, where there is violence, threats, intimidation, harassment, stalking, or any other concerning risk to personal safety within a relationship involving a family member, partner, former partner, or other close relation, the law can provide immediate protection through a protection order (Apprehended Violence Order, or AVO).

The core purpose of an AVO is not to punish but to prevent risk and protect safety. The court can make an order restraining the other person from engaging in certain conduct — for example, prohibiting them from approaching, contacting, harassing, or threatening the protected person, or from attending that person’s home, workplace, or other specified locations. In higher-risk cases, the court may also impose stricter restrictions.

Many clients mistakenly believe that a protection order can only be applied for after serious physical violence has occurred. In fact, this is not necessarily the case. Ongoing threats, stalking, harassment, intimidation, or conduct posing a personal-safety risk that causes a person to reasonably fear for their safety may also be sufficient to form the basis for applying for a protection order.

Where the conduct already involves a criminal offence — for example, actual assault, property damage, threats to cause harm, or breaching a court order — the police may also become involved in the investigation and, depending on the circumstances, lay criminal charges. A protection order is therefore a separate concept from a criminal prosecution, but in practice the two often arise together. For a party who is experiencing risk, this kind of protective measure is often one of the most direct and immediate legal tools available.

> For the application process for an AVO, the court procedure, police involvement, and the legal consequences of breaching an AVO, we provide a dedicated explanation in the Criminal Law section. ⇒ ‣

Although family violence does not automatically leave the party at fault with nothing or cause the affected party to “win more property”, where the relevant conduct has had a real impact on the financial circumstances of the relationship or on a party’s future capacity to provide for themselves, the court may well give it weight in the property settlement.

In the past, the impact of family violence on property settlement developed gradually, mainly through case law; in recent years, family law reform has further clarified that the court may consider the financial impact caused by family violence. This means that family violence is no longer merely part of the background to a case, but may directly affect the court’s assessment of overall fairness.

In practice, common situations that may affect a property settlement include:

One party carrying significantly more of the caring responsibilities over a long period during the relationship, resulting in limited opportunities for economic advancement.

For example, one client, over the course of a long relationship, was forced to leave their employment and lost their source of income because of the other party’s persistent control and threats, and was responsible for the children’s care over a long period. Even though the family’s assets had, on the surface, been accumulated jointly, the court may nonetheless consider that the family violence within this relationship had substantially diminished that party’s future economic capacity, and thereby affect the outcome of the property adjustment.

Likewise, financial control (financial abuse) is also a matter to which courts pay close attention in family law cases.

Such situations may include:

Using financial pressure to control divorce negotiations or living arrangements.

Many clients do not realise until their case begins that this kind of conduct is not merely “unfair” or “a problem within the relationship”, but may already constitute legally significant family violence.

That said, family law cases ultimately still rest on a foundation of evidence.

The court will not make a favourable finding simply because one party makes an allegation. The truly critical question is usually this:

whether the conduct can be clearly proven, and whether the connection between that conduct and the financial outcome can be reasonably demonstrated.

For this reason, in property cases involving family violence, the focus is often not simply on asserting that “the other party is in the wrong”, but on how to translate these impacts into well-structured evidentiary material that the court can understand and accept.

If property settlement is concerned with fairness, then the central concern of children’s arrangements is the safety and best interests of the child. In cases involving children, family violence is often one of the matters the court treats most seriously.

A common misconception is: “My partner hasn’t hit the children — the violence is only directed at me, so will this affect the children’s arrangements?” It is entirely possible that it will. Family law does not look only at whether a child has been hit; it equally considers:

Whether the current arrangements are sufficient to safeguard the child’s safety.

In other words, a child being “exposed to an environment of family violence” may, in itself, be an important consideration for the court.

Situations to which the court pays particularly close attention typically include:

The child displaying marked anxiety, resistance to contact, or unusual emotional responses.

Many clients mistakenly believe that the court will only find a family violence issue where there is a criminal conviction, a police record, or a restraining order. That is not so; what the family law court looks at is this: on the evidence as a whole, whether the child is, or may in future be, in an unsafe environment. If the court considers that a risk exists, the children’s arrangements may well be significantly affected. For example:

In serious cases, having one party take primary responsibility for major long-term decisions.

In more serious cases, the issue of family violence may even become the central dispute in the entire children’s matter.