How do I get my stuff if I have an AVO?
In situations involving Apprehended Domestic Violence Orders (ADVOs) in New South Wales, courts and police can assist individuals in reclaiming their personal belongings from another party through a legal mechanism known as a Property Recovery Order (PRO). This article explores the purpose, application process, and key aspects of property recovery orders.
What is a Property Recovery Order?
A Property Recovery Order (PRO) is a legal directive that enables either the defendant (the person subject to an ADVO) or the protected person (the individual seeking protection) to retrieve their personal items from the other party’s residence. The order specifies the items to be collected and outlines the procedure for their recovery. These orders are dealt with under Section 37 the Crimes (Domestic & Personal Violence) Act 2007.
To ensure the process is conducted peacefully and without conflict, police officers typically accompany the person collecting their belongings.
When Can You Apply for a Property Recovery Order?
A Property Recovery Order can only be issued alongside a provisional, interim, or final ADVO. It cannot be requested:
- After the ADVO proceedings have concluded.
- In cases involving Apprehended Personal Violence Orders (APVOs), which apply to non-domestic relationships.
If you need to recover belongings in an APVO matter, you will need to follow a different process. Legal advice or resources on uncollected goods may provide further guidance.
How to Apply
Applications for a PRO can be submitted by:
- The police.
- The protected person.
- The defendant.
To apply, you can include the request for a Property Recovery Order in your ADVO application or raise it during the court mention. Before applying, it is important to prepare a detailed list of the items you wish to recover, such as clothing, personal documents, and children’s belongings. Only items that are reasonably necessary should be included.
The court may decline to issue orders for items with disputed ownership unless you can provide evidence of ownership. Additionally, you must inform the court of any relevant family law property orders that have been applied for or issued.
It is important to note that a Property Recovery Order for the defendant can only be granted if they are present in court.
What Does a Property Recovery Order Cover?
A Property Recovery Order may:
- Specify the items you are permitted to collect.
- Direct the occupier of the premises to allow access for the retrieval of property.
- Arrange for access to occur at a time agreed upon by the occupier and the police.
- Require the presence of a police officer during the recovery process.
- Permit the presence of a specified individual to accompany the person collecting the property.
However, a Property Recovery Order does not:
- Authorise entry to premises by force.
- Grant the right to take items that the applicant does not own or have a legal right to possess.
It is important to understand that a Property Recovery Order is not a property settlement. For significant assets such as real estate, vehicles, or shares, a property settlement under family law is required. Legal advice should be sought for such matters. It is also important to remember that the Police are not going to be in a position to wait considerable periods of time for you to remove all your property, the recovery order is for essential items and is not designed for an extensive list of items in most cases.
Executing a Property Recovery Order
To execute a Property Recovery Order, you should:
- Visit your local police station with a copy of the order and the list of agreed items.
- If the order does not specify a date for collection, prepare a list of potential dates for retrieving your belongings.
- Be organised when collecting your items, as police will not wait for an extended period. Have your list ready and bring appropriate containers for packing and transporting your belongings. The Police will also not help you pack your items or remove them.
If you are unable to collect all your items on the specified date, you may need to seek legal advice for alternative options. Attempting to collect belongings on a different date without agreement may lead to complications, including police involvement.
If the police are unwilling to assist, you can:
- Speak to a Senior Officer, Domestic Violence Liaison Officer (DVLO), Aboriginal Community Liaison Officer (ACLO), or Multicultural Community Liaison Officer (MCLO).
- If your are the person in need of protection you may also be able to speak with Domestic Violence support or advocacy services.
- Lodge a complaint with the Local Area Command.
Complying with a Property Recovery Order
It is an offence to contravene or obstruct a Property Recovery Order without a reasonable excuse. The maximum penalty for such an offence is 50 penalty units, which equates to a fine of $5,500 in New South Wales. It is also important to understand that this offence carries a reverse onus, that means that the onus of proof of reasonable excuse in proceedings for an offence against lies on the person accused of the offence.
Importantly, a defendant cannot be convicted of breaching an ADVO if they are complying with the conditions of a PRO. For example, if an ADVO prohibits the defendant from approaching the protected person’s premises, compliance with the Property Recovery Order to retrieve belongings will not constitute a breach.
Urgent Property Recovery
If you need to recover your belongings urgently and cannot wait for the court to issue an order, contact the police. They may assist in retrieving your property. However, they cannot intervene in disputes over ownership, which must be resolved in court.
Appeals and Legal Considerations
The process for appealing a Property Recovery Order is complex. There is no statutory right to appeal a Property Recovery Order to the District Court, as the appeal provisions under the Crimes (Domestic and Personal Violence) Act apply only to ADVOs. The only avenue for appeal is through the Supreme Court under its general supervisory jurisdiction.
If you believe a Property Recovery Order was issued without proper procedural fairness or outside the appropriate timeframe, you may have grounds to challenge it. Legal advice is recommended in such cases.
Property Recovery Orders are an essential tool for ensuring the safe and orderly retrieval of personal belongings in the context of domestic violence cases. If you require assistance with a Property Recovery Order or any related legal matter, contact us to understand your rights and obligations.