How Can You Both Be the Victim? The Confusing Truth About Mutual Orders in NSW

You’re facing an Apprehended Domestic Violence Order (ADVO). But so is your ex. You both say you’ve been harassed, threatened or attacked. You both say you’re scared. And now you’re both asking the court for protection or breaching it.

This confusing scenario is more common than you might think. At National Criminal Lawyers®, we regularly represent clients in what are known as mutual AVO proceedings, where both parties apply for, or are subject to, protection orders against each other. It’s one of the most misunderstood areas of domestic violence law in NSW, and it raises complex questions about victimhood, abuse, retaliation, and legal fairness.

What Is a Mutual AVO?

A mutual AVO (also called cross-AVOs) occurs when both parties in a relationship:

• Apply for protection against one another; or
• Have protection orders imposed on them by police or the courts.

This often arises from the same incident, or a pattern of long-standing conflict where both individuals allege violence, intimidation, or coercion. In some cases, both parties are protected persons and defendants under separate orders.

It’s important to remember: having an AVO against someone does not stop them from having one against you.

Can Both Parties Really Be Victims?

This is where things get legally and emotionally complicated. Can both people be the abuser and the victim at the same time?

While the concept of mutual abuse is controversial, it does appear in legal practice, especially in highly volatile or “toxic” relationships. However, many experts and legal advocates challenge the idea that true mutual abuse exists.

As argued in the academic paper on emotional abuse, the concept of “mutual abuse” is widely rejected, especially in physical violence cases, where legal frameworks recognise a primary victim and aggressor. Emotional abuse, however, is often reciprocal and normalized, complicating this distinction. This is further blurred by certain cultural and traditional norms.

Furthermore, in many cases, one party may be using the legal system to extend coercive control, while the other is simply responding out of fear or confusion. This often leads to misidentification, a growing and harrowing legal issue.

Ultimately, in most cases, serious offences clearly involve a primary aggressor and a victim, while less serious ones often blur those lines.

Legal Framework: What Does the Law Say About Mutual AVOs?

AVOs in NSW are governed by the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Key provisions include:

• s 16 – Defines domestic violence offences including stalking, intimidation, and threats.
• s 14 – Makes breaching any AVO condition a criminal offence.
• s 22 – Allows the court to vary, revoke, or extend orders.
• s 48(3) – Courts may hear and determine cross-applications together, but must assess each individually.
• s 73 – Either party may apply to revoke or vary an AVO.

The DPP (Director of Public Prosecutions) also has significant discretion in how these matters proceed. Even if one party wants to withdraw their allegations, the DPP may still prosecute based on the public interest or the strength of the available evidence. This is common in mutual AVO breach cases where both parties have been charged, where one party often withdraws charges.

Are Police Required to Act on Both Sides?

Not always… and this is part of the issue. Police responding to domestic incidents are guided by a pro-arrest, pro-protection policy. They will generally identify a primary aggressor, but in unclear or escalating situations, they may:

• Apply for AVOs on behalf of both parties;
• Charge both parties with breaching AVOs;
• Or recommend both seek legal advice and apply privately.

This reactive approach has drawn criticism. It can lead to misidentification, especially in cases involving mental illness, coercive control, or trauma responses particularly affecting women, Aboriginal people and those from culturally and linguistically diverse backgrounds.

Case Law: How Courts Navigate Cross-AVO Claims

Courts must assess:

• Who initiated contact and why
• Patterns of behaviour such as threats, surveillance, intimidation)
• Trauma history, including mental health or abuse backgrounds
• Independent evidence such as text messages, medical records, witness testimony
• Police and DVEC statements, especially where one party is calm and the other distressed

Purcell v Director of Public Prosecutions (NSW) [2021] NSWDC 10

This real case offered four main insights into the reality of how cross-AVO claims are dealt with in the courts:

• Filing a cross-AVO doesn’t prove you were served with the other party’s AVO.
• Being in court for a variation doesn’t count as being present when the AVO was made.
• Cross-AVO cases risk confusion about who breached what, especially with multiple protected persons.
• Courts require clear, specific allegations in mutual AVO matters to avoid unfairness.

What If Both Parties Breach Their Orders?

Breaching an AVO is an offence under s 14, punishable by:

• Up to 2 years imprisonment and/or
• A fine of 50 penalty units

Each party can be charged and prosecuted independently. The court does not accept mutual breach as a defence or excuse. Instead, it will look at:

• The intent behind the breach
• The level of harm or intimidation involved
• Whether the breach was coerced, invited, or reactive

Hypothetical: Who’s Telling the Truth?

Case example: Jessica and Paul were in a two-year relationship involving emotional volatility. After an intense argument, police are called. Both claim abuse. Jessica says Paul threatened her and threw a phone. Paul says Jessica scratched him and screamed abuse. Police apply for interim AVOs for both parties.

Two weeks later, Jessica messages Paul to apologise. Paul responds. They see each other. A neighbour calls the police. Now, both have breached their orders.

The court must unravel:

• Who instigated contact?
• Was either party acting under fear or coercion?
• Is one party using the AVO as a weapon?
• Does either have a documented trauma or DV history?

If Jessica has a history of coercive control and mental health impacts, while Paul’s story lacks supporting evidence, the court may vary or withdraw Paul’s AVO and convict him of breach.

Mutual Orders FAQs

Can both parties apply for AVOs at the same time?

Yes. Courts often deal with these together but must evaluate each application separately under s 48(3.

Can emotional abuse justify an AVO?

Yes. Courts are increasingly recognising emotional abuse and coercive control, especially following legislative reforms and new guidance from cases and academic work.

Can I defend a breach charge if I was provoked or invited?

No. Breach is a strict liability offence. But such factors may reduce sentencing severity.

What if I want to drop the AVO now?

You must apply under s 73 to revoke or vary the order. The court will still assess risk.

Final Thoughts: Mutual Doesn’t Always Mean Equal

Just because both parties apply for protection doesn’t mean they’re both equally at fault. Courts must look beyond the surface to understand who is exerting control, who is acting out of fear, and who may be using the system as a weapon.

The concept of mutual victimhood is not always accurate. Sometimes, it’s a sign that the justice system hasn’t looked closely enough.

At National Criminal Lawyers®, we work with the best criminal lawyers Sydney to ensure that complexity is not confused for guilt and that the full story is told.

Call National Criminal Lawyers® Today

• Free first consultation
• Fixed fees
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• AVO, DV, and breach defence experts

When both sides speak, we help the law hear what matters.