Most practitioners miss several interlocking technical points that can invalidate orders or create defences.
First, the carer/dependant carve-out (s 5A, inserted 2018). A paid carer and dependant have a domestic relationship only for the protection of the dependant. An ADVO cannot be made against the dependant to protect the paid carer unless another domestic relationship exists (e.g., they are also relatives – s 5A(3) note). Many applications by aged-care facilities fail at this threshold. Conversely, an APVO can be sought by the carer against the dependant (s 5A(4)).
Second, the “properly notified” prerequisite for enforcement of non-local DVOs (s 98ZD(3)–(5)). A defendant who was not present when an interstate order was made and was not personally served cannot be prosecuted for breach in NSW until proper notification occurs. Electronic service under s 31 requires the police officer to have personally explained the effect, consequences, and rights. Failure to do so renders electronic service invalid, creating a complete defence.
Third, duration rules for ADVOs (ss 79A–79B). The default is now 2 years (or 1 year if defendant <18 at application). Indefinite orders require the applicant to have sought one, the defendant to have been 18 or over at application, and the court to be satisfied of significant ongoing risk of death or serious harm that cannot be mitigated by a time-limited order (s 79B(1)). Courts frequently default to 2 years without explicit consideration of the statutory factors, creating appealable error.
Fourth, costs limitations (ss 99–99A). Protected persons cannot be ordered to pay costs unless the application was frivolous or vexatious (s 99A(1)). Police applicants cannot be ordered costs unless they included false material or deviated unreasonably from case management (s 99A(2)). The mere fact a protected person later withdraws support does not ground a costs order against police.
Fifth, SDAPO interaction (Part 10A). These orders cannot require answers to questions, production of privileged material, or disclosure of protected confidences (s 87C(2)). Compelled evidence is inadmissible in other proceedings except breach prosecutions (s 87C(3)). Because they can be made on the balance of probabilities using hearsay (s 87B(7)), they are attractive to prosecutors but vulnerable to procedural fairness challenges if the defendant is not given adequate notice of the hearsay material.
Sixth, the “supersession” rule (s 98ZB). A later recognised DVO automatically supersedes an earlier comparable DVO. However, a police-made provisional order cannot supersede a court order (s 98ZB(7)). Practitioners often assume the latest order always prevails; the statutory hierarchy is more nuanced.
Seventh, recording of domestic violence offences (s 12). The recording is not automatic; the court must be satisfied the offence was a domestic violence offence. A victim is not compellable on that issue. Failure to record at sentence can preclude later use of the history in intimidation/stalking assessments (ss 7(2), 8(2)).
Eighth, the mediation prohibition in APVO matters (s 21(2)). The existence of any of the listed factors (history of violence, personal violence offence, s 13 offence, protected-attribute harassment, prior failed mediation) does not prevent referral; the court must still consider whether there is “good reason” not to refer. Many magistrates misread the subsection as a mandatory bar.
Ninth, address non-inclusion (ss 43–44). The protected person’s residential address must be omitted from the application and order unless the protected person (if 16+) consents or police are satisfied the defendant already knows it. Breaching this can lead to the order being set aside for procedural unfairness.
Tenth, the 28-day listing rule for provisional orders (s 29(3)(b)). Failure to list within 28 days does not invalidate the order if caused by court sitting arrangements (s 29(3A)), but the defendant can still argue prejudice on the final hearing.
These “gotchas” justify specialist advice; generalist criminal or family lawyers frequently overlook them, leading to invalid orders, successful appeals, or missed defences.