Consequences for the protected person

If the Court makes an Apprehended Violence Order (AVO) for your protection, there may be consequences for both you and the defendant that you should be aware of.

Your tenancy

If you and the defendant are co-tenants of a rental property, an Apprehended Violence Order (AVO) may affect your tenancy. 

If you want to stay

An exclusion order prohibits the defendant from living at or coming to your rental property. If an exclusion order has been made against the defendant, it will be under the heading ‘Orders about where you cannot go’. The exclusion order must identify your address. 

If a Provisional, Interim or Final Apprehended Domestic Violence Order (ADVO) is made against the defendant that includes an exclusion order, you can immediately change the locks to the property. You don’t need your landlords consent and you don’t have to give the defendant a copy of the new keys. You must give your landlord a copy of the keys within seven days.

If a Final ADVO is made against the defendant with an exclusion order, the defendant’s name will be automatically removed from the lease, and the lease will be transferred into your name. 

If the Final ADVO doesn’t include an exclusion order, you can apply to the NSW Civil and Administrative Tribunal (NCAT) to end the defendant’s tenancy. NCAT can terminate a tenant's tenancy if it is appropriate to do so in the special circumstances of your case.

If the lease was in the defendants name only, you can ask NCAT to transfer the lease into your name. 

If the defendant paid the bond, or part of the bond, they can give you and other remaining tenants a written request to the PINOP that you repay the defendant’s share of the bond. 

For more information, see Domestic violence on the Tenants’ Union of NSW website. 

If the defendant has left some of their belongings at your rental property, they might apply for a Property Recovery Order so that they can collect their belongings. They must do this before your case is finished. 

If a Property Recovery Order is made, you must allow the defendant to collect their belongings per the order. It is an offence to contravene or obstruct someone from complying with a Property Recovery Order without a reasonable excuse.

For more information see, Property Recovery Orders - Protected person. 

The defendant might also apply to NCAT to recover their property. You can’t dispose of their property unless you have given the defendant the required notice, or an order was made by NCAT.

For more information, see If someone left their goods with you.

You may also have to negotiate a family law property settlement.

For more information, see Finance and property.

If you want to go

If you want to leave your rental property, you can end your tenancy by serving your landlord a Domestic Violence Termination Notice. The termination notice must include:

• a termination date, which can be the same day you give the notice or a later date
• supporting evidence showing that you are in a domestic violence situation.

You can include as supporting evidence:

• a certificate of conviction for the defendant
• a current Provisional, Interim or Final AVO protecting you from the defendant
• a current family law injunction made to protect you from domestic violence
• a declaration by a competent person stating that you are a victim of domestic violence. 

If you are going to include a certificate of conviction or a declaration, it must be for a domestic violence situation that happened during your tenancy. 

You must give your co-tenants a copy of the Domestic Violence Termination Notice. You don’t have to give them a copy of your supporting evidence.

For a sample Domestic Violence Termination Notice, see Ending tenancy due to domestic violence on the Tenants Union of NSW website. 

For more information about domestic violence declarations, see Information for professionals who can make a domestic violence declaration on the NSW Fair Trading website. 

For information about serving your termination notice, see Serving notice on the Fair Trading NSW website. 

The remaining co-tenants will have to pay the full amount of the rent owed under the tenancy agreement.

You can give the co-tenants a written request that they repay you for your share of the bond within 14 days, less any rent you owe. If they don’t pay, you can apply to NCAT within 28 days for an order for payment of the bond.

You cannot be listed on a ‘bad tenant’ database if you end your tenancy by giving a Domestic Violence Termination Notice. 

For more information, see Tenancy laws for victims of domestic violence have started on the Fair Trading NSW website.

You are not liable for damage to your rental property caused by the defendant during a domestic violence offence. 

Your home

After separation and before a property settlement being finalised, who remains in the property is a matter to be discussed and negotiated between you and the defendant.

If there is a mortgage on the property and one party leaves, it is important that you discuss who will continue to make the repayments. The person whose name is on the mortgage contract is legally responsible to make the repayments. This means that if the mortgage was taken out by both of you, you are each of you is jointly and individually responsible for the debt. If the mortgage is in one party’s name only, the lender can only take action against that person.

If you or the defendant can't afford to make the repayments, you may be able to seek a hardship variation of your loan with your lender. You should speak to a financial counsellor or get legal advice as soon as possible.

For more information, see the fact sheet Financial Hardship on the Financial Rights Legal Centre website.

If you want to stay

If you want to stay in the property, you should speak to the defendant about how you are going to make the mortgage repayments.

If the mortgage is in the defendant’s name, and they stop paying it, you will have to pay it or the bank may take legal action against the defendant to recover the arrears and full amount owing.

If the property is in the defendant’s name and they want to sell it, you should get urgent legal advice.

If an Apprehended Domestic Violence Order (ADVO) has been sought and the defendant has left some of their belongings at your home, they might apply for a Property Recovery Order so that they can collect their belongings. If a Property Recovery Order is made, you must allow the defendant to collect their belongings per the order. It is an offence to contravene or obstruct someone from complying with a Property Recovery Order without a reasonable excuse.

For more information see, Property Recovery Orders - Protected person.  

If the title to your home is in your name and the defendant’s name, the defendant can continue to live in the property unless:

• the AVO includes an exclusion order
• a Family Court has made an order that you have sole use and occupation of the home.

If the title to your home is in the defendant’s name, the defendant can continue to live there unless:

• the AVO includes an exclusion order 
• a Family Court has made an order that you have sole use and occupation of the home.

If you want to go

If you want to leave, and your name is on the mortgage, you should speak to the defendant about how they are going to make the repayments. If the defendant doesn’t pay the mortgage, you will have to pay it, or the bank may take legal action against you to recover the arrears and full amount owing.

You should close any utility accounts in your name only and remove your name from any joint accounts.  You should give the defendant reasonable notice before you do, so they can open their own accounts.

If you left some of your belongings in the home, you have a legal interest in those things, and you are entitled to get them back. The defendant can’t dispose of your belongings unless they have given you the required notice, or an order was made by NCAT.

For more information, see If someone left their goods with you.

If it is safe to do so, you should speak to the defendant to organise a time to collect your belongings.

If it is not safe for you to go to the property by yourself, you should contact the police. They may be able to accompany you to the property for a short period of time while you collect the things you need urgently, for example your wallet, laptop, or clothes. They will not help you remove all of your personal belongings.

If an Apprehended Domestic Violence Order has been applied for, you may be able to apply for a Property Recovery Order to collect your belongings. You must do this before your case is finished.

For more information, see Property Recovery Orders - Protected person. 

If you own significant assets with the defendant, you may also have to negotiate a family law property settlement.

 For more information, see Finance and property.

Your job

If an ADVO has been made for your protection, you may want to take leave or change your working arrangements. All employees including casuals are entitled to family and domestic violence leave.

If you are an employee of a small business (with less than 15 employees), you are entitled to take five days unpaid family and domestic violence leave every year. You can take this leave as one block of five days, separate days or any separate period less than a day.

From the 1 August 2023, employees of small businesses will be entitled to take 10 days of paid family and domestic violence leave each year. Until then, small business employees can continue to take unpaid family and domestic violence leave.

If you are an employee of a non-small business (with 15 or more employees), you are entitled to 10 days paid family and domestic violence leave every year. You can take this leave as one block of five days, separate days or any separate period less than a day.

Paid family and domestic violence leave has to be recorded on a pay slip as normal pay for ordinary hours of work, or any other kind of payment for performing work, such as an allowance, bonus or overtime. You can also request that the leave is recorded as another type of leave.

For more information, see Family & domestic violence leave on the Fair Work Ombudsman website. 

If you want to continue working, you can ask your employer to change your working arrangements, for example your hours of work or place of work.

You can do this if you are:

• a victim of domestic violence
• caring for an immediate family member or member of your household who is a victim of domestic violence.

Your employer doesn’t have to agree to change your work arrangements.

Your visa

If you are in Australia on a temporary visa, and you have experienced domestic or family violence in your relationship, you may be concerned about the effect that leaving your partner and getting an Apprehended Violence Order (AVO) will have on you. If you are waiting for a decision to be made about an application for permanent residency, you might be worried that leaving your partner could lead to your application for permanent residency being rejected and you being forced to return to your home country.

In certain situations, if you are a victim of domestic or family violence, you may be able to end your relationship with your partner and still be granted a permanent visa.

For more information, see Visas and immigration.

Consequences for the defendant

If a Final Apprehended Violence Order (AVO) is made against the defendant, there may be consequences for them. For more information about how an AVO could affect the defendant, see Consequences for the defendant.