Consenting to an ADVO on a “without admissions” basis is no joke 

consenting to an advo

An Apprehended Domestic Violence Order is a civil order that is used to protect a “Person In Need Of Protection” (PINOP) from the defendant. This is ordinarily a person who is in a domestic relationship with the defendant, such as the spouse, partner, children, or another family member with whom the defendant resides. When an accused consents to an ADVO on a “without admissions” basis, it means that they are accepting the ADVO without admitting to the allegations that have been made against them. As the ADVO is a civil order, a person could choose to accept it without the allegations being used against them in the future.

It may be helpful to a person to consent to an ADVO without admitting to the allegations if they don’t wish to waste time or money fighting it.

However, consenting to an ADVO on a “without admissions” basis is no joke. At the time of consenting to an ADVO, you might not think about the consequences it can have on your life further down the track. The reality is that it can affect other areas of your life such as a visa or citizenship application, a family law matter, or even your employment. If you are served with an Application, here is a handy link of what to do.

Visa applications

Section 501 of the Migration Act 1958 (Cth) relates to what is widely known as the “character test”. In general, a person’s visa application can be refused, or their visa can be cancelled if the Minister for Home Affairs (or a delegate) reasonably suspects that the person does not pass the character test, and that the person does not satisfy the Minister that they pass the character test. 

The “character test” in subsection 501(6) provides a wide range of issues that are taken into consideration when a person’s character is assessed. These can relate to specific serious matters that might not apply to an average person, particularly a person who is subject to an ADVO. For example, whether the person has a substantial criminal record, is convicted of certain offences, or has been affiliated with a group involved in criminal conduct are factors that might not apply to an average person, and most people would tend to overlook this, thinking they are in the clear.

However, subsection 501(6)(c) has recently been earmarked as a catch-all for recent applicants, in that they have been determined to not be of “good character” based on the Minister having regard to either or both of the person’s past and present criminal conduct, and/or the person’s past and present general conduct.

According to case law, the meaning of “good character” is taken from the ordinary meaning, and it means the enduring moral qualities of a person, and not their reputation, fame, or standing in the community.

We have seen many people who have had no prior criminal conduct or convictions become subject to an ADVO. The ADVO has usually been the result of an isolated incident which was not a reflection of the person’s usual behaviour. It can therefore be quite shocking for that person to be told that this one event proves that they are not of good character for the purposes of their visa application. 

Citizenship applications

Section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) is a crucial part of the legislation concerning the good character requirements for a person’s citizenship application. There is no specific “test” for good character in the legislation, which has been explained in case law. However, it is also taken to mean that it relates to a person’s enduring moral qualities as opposed to their reputation in the community.

A past decision of the Administrative Appeals Tribunal has affirmed that domestic violence is contrary to the values of Australian Society. Such values are outlined as obligations in the preamble to the Australian Citizenship Act itself, being:

  • a pledge of loyalty to Australia
  • a sharing their democratic beliefs
  • respecting their rights and liberties
  • upholding and obeying the laws of Australia

The decision in Karatunov and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 132 determined that the applicant was not of good character. The facts about the case were:

  • In July 2015 the applicant applied for Australian Citizenship
  • In October 2015, the applicant appeared at a Magistrates Court in Queensland because he contravened a domestic violence order between July and September of 2015. No conviction was recorded at court.
  • The Citizenship application was refused by the Minister.
  • The applicant had failed to disclose the domestic violence order.
  • There were multiple breaches of the domestic violence order.
  • The Tribunal Member at the AAT perceived that the fact the domestic violence order was made on a no-admissions basis did not support the view that the court had made no findings of domestic violence. The member was of the view that the court was convinced of certain allegations and circumstances that convinced it to make that order.
  • The Tribunal Member considered that there was not a sufficient amount of time that had lapsed between the initial making of the domestic violence order and the application for citizenship. This prevented the Member from being satisfied that the applicant had enduring moral qualities.

As you can see, it is not necessarily the fact that a person has had an ADVO that was consented to without admissions being the primary factor in having a citizenship application refused. It is a range of considerations on a case-by-case basis, in particular, the passage of time being one which carried a lot of weight in favour of a decision to refuse the application.

Employment law-related matters

Many people nowadays require a “Working with Children Check” (WWCC) to be employed. This can occur in employment situations where the person will not even be working directly with children but could be exposed to children throughout their employment. One example might be that the employee may walk down a hall at their place of employment where a child is holding their parent’s hand. Another example may be that a group of children attend an on-site childcare facility which is at the person’s place of employment, even though the employee does not visit the childcare facility or go anywhere near it.

If a person has an ADVO, it may affect the person’s ability to obtain the WWCC if the children who are included in the ADVO are protected persons.

Family law-related matters

Where there is a parenting matter, an ADVO can significantly impact any parenting orders that are made. This is because the “best interests of the child” is a paramount consideration of the court. One parent may rely on the other parent’s ADVO to apply for orders that will restrict that parent’s “spend time” arrangements with the child. For interim applications, a parent with an ADVO may be forced to spend time with the child in supervised visits that are heavily restricted in terms of the number of contact hours that they are able to visit. For final applications, the circumstances surrounding the ADVO and anything relevant to that may be relied on by the other parent to heavily restrict the parent’s access to the child and spend time arrangements on a permanent basis.

Also, the usual presumption of equal shared parental responsibility may be rebutted because the court may be convinced that the parent with the ADVO presents a risk to the child. Hence, a parent who has consented to an ADVO even on a “without admissions” basis may expect to have their parental responsibilities curtailed and time with their children regulated on an ongoing basis.

Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales. If your matter is at Blacktown Local Court for an AVO, we are conveniently located within a walking distance from the Blacktown Local Court and can represent you to defend AVO against you. Blacktown Local Court is located at 1 Kildare Road Blacktown and hears AVO applications on every Wednesday and Blacktown Criminal Lawyers appear there defending unfair and unjust AVO’s against our client every week.

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