The Law Handbook

Your Practical Guide to the Law in New South Wales

11th edition

Domestic Violence

21

Author Womens Legal Services NSW

The information contained in this document is as up-to-date and as accurate as possible at time of publication in August 2009.

domestic violence

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What is domestic violence? Practical help Legal remedies

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What is domestic violence?

Gender and language
While domestic violence can happen in many circumstances, in the vast majority of reported domestic violence cases men are the perpetrators and women the victims. For this reason this chapter uses he to refer to perpetrators and she to refer to victims. This is not intended to exclude other situations.

Changes to domestic violence law

In March 2008 a number of changes relating to domestic violence law came into force. A summary of key changes are listed below: Domestic violence laws (and court procedures) are now set out in a stand-alone Act the NSW Crimes (Domestic and Personal Violence) Act 2007. Previously the laws were part of the NSW Crimes Act 1900 and the NSW Local Courts Act 1982. Police can now indicate on a charge if the offence was a domestic violence offence. A court is now required, on a finding of guilt, to direct that the offenders record specify that the offence was a domestic violence offence. Previous domestic violence offences committed by that person can be similarly recorded. There is now an automatic inclusion of children on an adults AVO where the children are in a domestic relationship with the adult seeking the AVO, unless the court is satisfied that there is good reason not to include them. Automatic interim AVOs will now be ordered where there is a charge of a serious personal violence offence. Telephone interim orders are now called Provisional Orders. Consequential amendment to the Law Enforcement (Powers and Responsibilities) Act 2002 so that: police now have the power to request the disclosure of the identity of a person if they reasonably suspect that an AVO has been made against them, and the range of dangerous implements that police can search for is expanded.

The term domestic violence describes a situation where one person in an intimate or family type relationship uses violent or intimidating tactics to control and dominate another. Domestic violence is not restricted to physical assault. It also includes: sexual abuse emotional or psychological abuse verbal abuse stalking and intimidation social and geographical isolation financial abuse cruelty to pets.

What is assault?
An assault can be committed without actual physical contact; for example, it is an assault if the attacker threatens violence and appears to be immediately capable of and willing to carry out the threat (for example, with a raised knife or a clenched fist). It is also an assault to intentionally push or spit on a person, even if it does not cause physical injury.

The crime of domestic violence

Domestic violence is a crime. It is subject to legal intervention in the same way as violence between strangers. There is also specific action that can be taken to prevent it from occurring or continuing. However, victims of domestic violence are often not aware that this is what they are experiencing, particularly when they are isolated, socially and geographically. Health workers and other professionals, as well as family and friends, can support women who are experiencing domestic violence by giving them accurate information and referral to services. Part 2 (ss.9 and 10) of the Crimes (Domestic and Personal Violence) Act 2007 recognises the communitys commitment to the elimination of violence between people in domestic relationships, and supports the principles underlying the United Nations Declaration on the Elimination of Violence against Women and the United Nations Convention on the Rights of the Child.

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Domestic violence in the community

A survey conducted by the Australian Bureau of Statistics (2005) found that 17% of women surveyed have experienced violence from their partner at some time during or after the relationship.

Under-reporting
Despite increased knowledge about domestic violence and the legal remedies available, it is still substantially under-reported. This is due to various factors, including: community attitudes the tendency of some women to blame themselves lack of awareness that help is available a desire to keep families intact dependence on the violent partner.

Involvement of children
This survey also found that 57% of women who had experienced current partner domestic violence and 62% who had experienced previous partner violence had children in their care at the time. In 34% of current partner cases and 39% of previous partner cases the children had witnessed the violence.

In gay and lesbian relationships

Domestic violence also occurs in gay and lesbian relationships. It is difficult to determine its extent because under-reporting is made worse by: the victims fear of discrimination their unwillingness to reveal their sexuality if they are not already out a perceived lack of community understanding. There is, however, increasing awareness and action to help victims of violence in same-sex relationships.

Times of increased risk

It also appears that women are at greater risk of violence at particular times, such as during pregnancy and upon separation. The survey found that 36% of women who had experienced violence from a partner during a relationship experienced it during pregnancy, and 17% experienced it for the first time during pregnancy.

Practical help
The legal remedies available to victims of domestic violence may not be much use in a crisis. Practical steps taken by the victim can be much more important. Legal remedies can and should be pursued as soon as possible afterwards. If the police response is not satisfactory
If the police refuse to attend or do not come promptly, she should ring again and ask to speak to the duty sergeant.

The police domestic violence liaison officer

Every police local area command has a domestic violence liaison officer whose role is to assist women experiencing domestic violence and see that all officers in that patrol follow the standing operating procedures. A woman who finds the police unresponsive should ask to speak to the domestic violence liaison officer. There is usually only one domestic violence liaison officer at each patrol, and they may also be assigned to general duties, so their availability may be limited.

Getting help from police

The most immediate concern for a woman who has been, is being, or is about to be assaulted is her protection. This can be obtained by contacting local police or dialling 000. There are specific commissioners instructions and domestic violence standing operating procedures requiring police to take action in domestic violence cases. What to tell police When phoning the police, a woman should: give her name and address emphasise the urgency of the situation ask for the name of the officer she is speaking with.

Who can help

If this is not effective, the woman should telephone a crisis line such as the Department of Community Services domestic violence line (1800 656 463, 24 hours a day), or contact a womens refuge and ask them to call the police for her.

Police powers Powers to enter premises The police have very wide powers to enter a private house to investigate a complaint of domestic violence. Police can enter without a warrant: if invited to do so by a member of the household (including a child who appears to

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530 The Law Handbook live there) to investigate whether an offence has been committed or prevent a further offence, as long as the legal occupier (the person who holds the lease or owns the house) does not expressly forbid entry, or if invited to do so by the apparent victim of violence, even if the legal occupier objects. If police are refused access If the police are refused access, they can apply for a warrant immediately over the police car radio (a telephone or radio warrant) to enter the premises. What police may do When the police arrive, they may: charge the man with assault help the woman leave safely and take her (and any children) to a safe place remove the man from the premises make an application for an Apprehended Violence Order (AVO) on behalf of the woman if the situation is urgent, apply by telephone for an interim Apprehended Domestic Violence Order or interim Apprehended Personal Violence Order (referred to as a Provisional Order) search for and seize firearms in some circumstances, search for and seize dangerous implements or dangerous articles.
Police powers to apply for an Apprehended Violence Order and charge a violent person are discussed in more detail below (see Criminal charges on page 535 and see Police application for an AVO on page 539).

Dealing with the police

What the police do often depends on the womans insistence and determination. They often ask a woman what action she wants them to take. If she wants a charge to be laid, she should make this clear. If the police decide to charge the man, he is arrested, taken to the police station, fingerprinted, photographed and formally charged. The person laying the charge has to sign the charge book (a book recording reported offences, kept at the police station). Police rules require police to sign the charge book if a man is to be charged with a domestic violence offence. However, if police are reluctant to lay a charge and the woman wishes to proceed with legal action, she should persist by saying that she will sign the charge book herself. Where the police have refused to lay charges without justification, a detailed written complaint can be made to the NSW Ombudsman (see chapter 10, Complaints). There is a domestic violence officer in the police complaints section in the Ombudsmans Office.

Police powers to search for and seize firearms Police have broad powers to search for firearms when attending a house, by invitation or warrant, to investigate a complaint of domestic violence. Under s.85 of the Law Enforcement (Powers and Responsibilities) Act 2002, they must ask if there are firearms on the premises and, if the answer is yes, take all such action as is reasonably practicable to search for and seize the firearms. When police must apply for a warrant If police are told there are no firearms on the premises, but have reason to suspect otherwise (because, for example, the woman says there are, police records show that there have been in the past, or an occupant of the house has a firearms licence or permit), they must apply for a search warrant (s.86). They must also apply for a search warrant if they believe that a person perpetrating domestic violence somewhere outside their home (such as a hotel) has a firearm at home. When a firearms licence must be suspended The police must suspend a firearms licence or permit if: the holder has been charged with a domestic violence offence the police believe the holder has committed or has threatened to commit such an offence. In these circumstances the suspension is in force for up to 28 days. The firearms licence of someone who is the subject of an interim Apprehended Violence

Complaints about police inaction If the police do not attend when called to a domestic violence incident, or do not act appropriately to protect the victim or catch the offender, a complaint should be made to one or more of the following: the arresting officer the station sergeant or duty sergeant the police domestic violence liaison officer the patrol commander the customer assistance unit, Office of Professional Responsibility the Ombudsmans office the persons local member of parliament. If the Police Service receives certain complaints in writing they are required to refer the matter to the NSW Ombudsman.

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Order is suspended for the duration of the order (Firearms Act 1996 s.23). When a firearms licence must be revoked If a final Apprehended Violence Order is made against the person, their firearms licence is revoked (s.24). There is no appeal against this revocation. A person who is subject to a final Apprehended Violence Order may not obtain a firearms licence for ten years from the expiry date of the order, unless the Apprehended Violence Order has been revoked (s.29(3)(c)). If a licence is suspended or revoked A person whose firearms licence is suspended or revoked must surrender the licence and any firearms to the police (s.25). It is an offence for a person to have a firearm without a licence (s.7). Police powers to search for and seize dangerous implements or dangerous articles Police also have powers to search for and seize dangerous implements or dangerous articles when attending a house, by invitation or warrant, if they believe on reasonable grounds that the dangerous implement or dangerous article was, is, or may have been, used to commit a domestic violence offence. Dangerous implements include: knives spears guns any implement made or adapted to cause injury anything belonging to a person that the person intends to use to cause injury to another person or damage property. Police powers to demand information Police can demand a person to disclose his or her identity where they suspect, on reasonable grounds, that an Apprehended Violence Order has been made against the person. However, the power does not extend to defendants of Apprehended Violence Orders where an application has been made but not served on the defendant.

While police are sometimes reluctant to intervene in a domestic situation where a woman has been assaulted, the police (and the Department of Community Services) are more willing to step in where the victim is a child. Notification requirements Who must report suspected child abuse Certain groups of professionals (a person who, in the course of his or her professional work or other paid employment, delivers health care, welfare, education, childrens services, residential services, or law enforcement to children) are obliged by law to report suspected cases of child abuse to the Department of Community Services (Children and Young Persons (Care and Protection) Act 1998 ss.2329). They include medical practitioners, teachers, school principals, school counsellors and early childhood teachers. There are penalties for failing to do so (see chapter 8, Children and young people). Many non-government organisations have a staff policy concerning notification. Reporting by the public Anyone else (friends, family, neighbours, other workers) who believes on reasonable grounds that a child is in danger, or being abused or neglected, may also notify the department. Parents who need help Parents who need help for themselves may also contact the Department of Community Services.
The Child Protection Family Crisis Service, run by the Department of Community Services, and the Child Abuse Prevention Service both operate a 24-hour telephone line and may be contacted for advice and assistance.

Protection for children

There is increasing recognition of the harm children suffer from living in a violent household seeing or hearing their mother being assaulted, being caught in the cross-fire or intervening to help their mother, or actually being the subject of violence.

Children and Apprehended Violence Orders Children can also be protected by Apprehended Violence Orders. If a domestic violence offence, stalking or intimidation or an act of child abuse has happened to a child, the police must apply for an Apprehended Violence Order for the childs protection. If the court makes an Apprehended Domestic Violence Order or an interim Apprehended Domestic Violence Order to protect a person 18 years or above, the court must extend the order to include the protection of any child with whom the adult has a domestic relationship, unless there are good reasons not to do so.

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Assistance for Indigenous women

Aboriginal and Torres Strait Islander women often face particular problems when they suffer family violence in their communities. As well as the difficulties faced by all women in these situations, they may have to contend with racist attitudes. Historically, indigenous women have had negative experiences with mainstream services, and there are few indigenous workers employed by these services. Problems getting help For all sorts of reasons, Aboriginal women may be reluctant to use the courts and the police to help them and their children when they face violence at home. Aboriginal women may also hold fears about the danger to Aboriginal men when police do intervene and they are held in police cells. However, the findings of the Royal Commission into Aboriginal deaths in custody must not be used by the police or the legal system as an excuse for not taking appropriate action to protect Aboriginal women and children. Aboriginal women may also have problems because some agencies, including some Aboriginal legal services, refuse to intervene in a conflict between two Aboriginal people. Support services The Aboriginal Medical Service The Aboriginal Medical Service provides a child sexual assault service as well as medical and other services to adults. There are also Aboriginal women working in womens refuges who are trained sexual assault counsellors. Family Violence Prevention Legal Services The Commonwealth government, through the Indigenous Law and Justice Branch of the AttorneyGenerals Department, funds violence prevention units in an effort to reduce the level of violence in indigenous communities. These services have a holistic approach, addressing issues connected with family violence such as community education, protection orders, and family law matters. The units are established in close consultation with the leadership of the community where they operate. Womens Legal Services NSW The Indigenous Womens Program, Womens Legal Services NSW, operates an information and

advice line and also undertakes community legal education. The Wirringa Baiya Aboriginal Womens Legal Centre The Wirringa Baiya Aboriginal Womens Legal Centre can also be contacted for legal advice, community education and referral to other services that employ Aboriginal workers to help victims of violence.
See Contact points on page 547 for contact details for these organisations. See also chapter 2, Aboriginal people and the law.

Assistance for immigrant women

Immigrant women who have been sponsored to live in Australia by their partners do not necessarily lose their residency status if they can show the relationship has broken down as a result of domestic violence by the sponsor. Support services Immigrant women experiencing difficulties in Australia can contact the Immigration Advice and Rights Centre or the Immigrant Womens Speakout for advice and assistance. The Department of Immigration and Citizenship has a domestic violence contact officer at each regional office. Exemption from visa requirements An immigrant woman experiencing domestic violence can apply to be exempt from the spouse or de facto visa requirement that the relationship be genuine and continuing for two years. For visa applications lodged after 15 October 2007, evidence accepted for this purpose includes: a final Apprehended Violence Order or other restraining order under state or territory laws (a temporary or interim order is not acceptable to the department as evidence of family violence), or an injunction under s.114 of the Family Law Act 1975, or evidence of the conviction of the permanent residence sponsor for assault or some other offence of violence against the woman (the alleged victim of family violence), or joint undertakings filed in court proceedings where there was an allegation of violence, or a statutory declaration from the woman and from two competent people (such as

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doctors, psychologists, nurses, social workers, family consultants, or people with appropriate authority in refuges or domestic violence crisis or counselling services) detailing that family violence has been perpetrated against her by her sponsoring partner, or a statutory declaration from the woman and from one competent person together with the police record of the assault committed by the alleged perpetrator against the woman (the alleged victim of family violence). However, the police record cannot consist of the statement from the alleged victim. The terms family violence and alleged victim are defined terms under the Migration Regulations. When the victim is a child, evidence may also be accepted from the state child protection authority (in NSW, this is the Department of Community Services).

they wish to end the relationship. Many women have trouble leaving because of lack of money, support and accommodation, as well as other reasons. Some sources of help are discussed below. Financial help Centrelink The woman should visit Centrelink as soon as possible to arrange for immediate payment of a pension or benefit. Additional assistance is available to people leaving violent situations, to help with the costs of moving. Centrelink has a booklet, Working to assist people experiencing violence, which outlines the services it can provide, and the rights and responsibilities of its clients. Other resources The Department of Community Services and charities such as the Smith Family and St Vincent de Paul may be able to offer emergency financial help. Legal advice The Domestic Violence Advocacy Service The Domestic Violence Advocacy Service at Womens Legal Services NSW gives free legal advice and information over the telephone. The service may also be able to provide free legal representation in Apprehended Violence Order matters, or referral to a solicitor (who can apply for legal aid if the woman is eligible). The Legal Aid Commission Free legal advice and representation for Apprehended Violence Order matters may be obtained from the Legal Aid Commission. Legal aid may be available to complainants in domestic violence proceedings, subject to means and merit tests. It is not necessary to go to the Legal Aid Commission to get legal aid. A grant of legal aid may be assigned to any legal practitioner willing to accept legal aid rates of payment. Legal aid for family law proceedings Legal aid for family law proceedings and proceedings under the Property Relationships Act 1984 is also subject to a means and merit test (a different test from that for legal aid in Apprehended Violence Order matters).

Refuges
There are a number of refuges in NSW providing crisis accommodation and a supportive, safe environment for endangered women and their children. Most are open 24 hours a day. Refuge staff can assist women with their legal and welfare rights and help them apply for social security benefits and legal aid. Support services The Womens Refuge Resource Centre is the contact point for womens refuges in NSW. The Homeless Persons Information Centre can also help, and the Department of Community Services 24-hour domestic violence line may assist in finding emergency accommodation. If the woman leaves home
A woman will not jeopardise her rights in a later property settlement or maintenance application if she leaves her home in circumstances of domestic violence.

Financial assistance and legal assistance

Victims of family violence usually need practical help to get out of a violent situation, particularly if

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534 The Law Handbook There are also a small number of contact and changeover services in operation. There is usually an assessment before parents can use these services. Family law orders may be varied or revoked so that new arrangements may be made to avoid potentially violent situations. Security at home
Sometimes a woman can remain in her home and protect herself from violence by making it more secure. This is an option where, for example, the abuser is a threat only when he visits after drinking. A security system can either keep him out altogether, or give the woman some protection while she calls for help from neighbours or the police. (See the Yellow Pages telephone directory under Security consultants.) The Department of Community Services may help to have a telephone connected if necessary. The Staying Home Leaving Violence Framework helps women and children to stay safe at home in the absence of the violent partner. The Framework operates as a pilot project in Bega, Eastern Sydney and Western Sydney.

Can defendants get legal aid?

Legal aid is generally not available to defendants in domestic violence proceedings. There are exceptions in some circumstances; for example, where the defendant is a victim of domestic violence and has had an Apprehended Violence Order application made against them in response to their application for an order, a crossapplication, or where they have a special disability that prevents them from adequately understanding the court process.

Assistance in dealing with the courts The Womens Domestic Violence Court Assistance Scheme operates in a number of courts around NSW. The schemes offer support, information and referral to women in Apprehended Violence Order proceedings. Most of the schemes also have a safe waiting place for women and their children while they are at court, and many have a solicitor in attendance to represent women who have applied for Apprehended Violence Orders. You can call your Domestic Violence Court Assistance Scheme before going to court to find out what services are available on the court date. Housing information The Department of Housing The Department of Housing provides assistance in housing, and may also be able to help with bond and rental payments to women on low incomes. The department has a priority domestic violence policy under which requests for housing assistance from victims of domestic violence must be dealt with as a matter of urgency (see also chapter 29, Housing).

Telephone abuse
A woman who is being abused over the phone can pay a small fee to get an unlisted number that will not be printed in the telephone book. It is an offence under Commonwealth law to make menacing, harassing or offensive phone calls. The woman should contact the police or the phone company about laying charges against the caller.

Counselling
Counselling for victims Womens health centres and community health centres provide both individual counselling and opportunities for women to speak to others who have had similar experiences. The Department of Community Services 24-hour domestic violence line can provide referral to a counselling service. Counselling for perpetrators Domestic violence is a criminal offence, to be dealt with by the legal system. Any measure to reduce domestic violence must not detract from or minimise the application of the criminal process, and must keep the safety of women and children as its highest priority. Perpetrator programs (programs to help violent men change their behaviour) continue to be discussed. Their practical success is yet to be determined. In NSW a number of voluntary organisations have anger management courses for perpetrators of domestic violence.

Contact arrangements for children

A woman who is afraid of violence at a family law handover can make special arrangements. For example, the handover could take place at a friends or relatives home, or it may be useful to arrange for someone else to be at the womans house when the man arrives to collect the children. Many people arrange for children to be picked up and returned at a police station, a railway station or some other public place. This may be distressing for children, but sometimes there is no other practical alternative that gives the woman protection at these times.

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Legal remedies
Legal action in response to domestic violence may: deal with a criminal action, and provide a penalty for it provide protection through an order such as an Apprehended Violence Order amend family law contact orders to protect the victim or her children. These forms of legal action may be taken either by the police on behalf of the woman or as a private legal action by the woman herself. Going to court If the police arrested the defendant and did not release him on police bail, the case will go to court as soon as possible usually the day he was arrested or the following day. If the defendant was not arrested, he will be given a court attendance notice to appear in the Local Court and the case will go to court a week or two later. In either case, the first court appearance is called a first return day or a mention day. It is designed to allow the magistrate to find out what is happening in the matter it is not a full hearing. The defendant is asked whether he wants to plead guilty or not guilty. If the defendant pleads guilty If the defendant pleads guilty, the court listens to the prosecutions facts, hears what the defendant or his lawyer has to say about these facts (or about the appropriate sentence), then imposes a punishment (possibly on another day). The court must also direct that the offence be recorded on the persons criminal record as a domestic violence offence. If the defendant pleads not guilty If the defendant pleads not guilty, the court sets a hearing date (often months away), and releases the defendant on bail until then. Giving evidence The woman is usually the main witness to the violence, sometimes the only witness. Her evidence is vital to the prosecution case, and without it the case will usually be dismissed. People can be called to give evidence against their married or de facto partners in cases of family violence (they are compellable witnesses), although the court also has a discretion to excuse them (Criminal Procedure Act 1986 s.279(3)). The womans evidence may be enough to prove the case, but it will help if there is other evidence that supports her claim. For example, evidence of bruising may be given by a treating doctor (this evidence will have more weight if the woman saw the doctor as soon as possible after the assault). Photographs may also be helpful.

Criminal charges
Reporting to police Domestic violence is a crime, which should be reported to police as soon as possible. This is not limited to physical assault; there are other criminal offences for which the offender should be charged, such as stalking, trespassing, and malicious damage. What police must do The police have a duty to arrest and charge anyone they reasonably suspect has committed a crime. Where an alleged offender is released from police custody until the court hearing (which is usually the case) the police should apply for an Apprehended Violence Order for the victim and should consider putting the alleged offender on conditional bail (see Bail in chapter 4, Arrest, interrogation and bail). If the person is arrested and charged When the alleged offender is arrested and charged, the police can indicate on the charge that the offence is specifically a domestic violence offence. The police, not the victim, are responsible for deciding whether or not to proceed with an assault case. If the police decide to arrest and charge the offender, the police or the Director of Public Prosecutions then prosecutes him. They decide how the case is conducted, and the victim has no real say in the matter (she is a witness for the prosecution case). Alternatively, the police may decide that there is not enough evidence, and drop the prosecution. The case can proceed even if the victim does not want it to, and she can be compelled to give evidence.

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536 The Law Handbook and jury in a higher court (either the District Court or the Supreme Court). The man is usually on bail or under an interim Apprehended Violence Order in the meantime, though the court may consider him so dangerous or the offence so serious that he is kept in jail until the trial. If the woman wants police action dropped Sometimes, the victim may want the police to drop criminal charges. That decision is made by the police, not the victim. What the woman can do The victim can write to police requesting that the charge be withdrawn and stating why she wants it withdrawn. This process is called making representations. What police may do Police consider such matters very thoroughly, as there is a risk that an offender may have pressured, coerced or threatened a victim to get them to drop the charges. Sometimes, despite representations having been made, police will proceed with the charge. What the woman should not say When discussing such matters with police, a victim should not say that she made things up or lied in her original statement in the hope that the charge will be withdrawn, as this can result in action being taken against her. Getting legal advice Independent legal advice should always be sought before making representations.

Interim Apprehended Violence Orders

When a person is charged with a serious offence, the court must make an interim Apprehended Violence Order unless it is satisfied that it is not required for example, there is already an Apprehended Violence Order in place (s.40). A serious offence is defined in the Crimes (Domestic and Personal Violence) Act 2007 to include (among other things) murder, a domestic violence offence and stalking.

What must be proved To get a conviction, the police must prove beyond reasonable doubt that the defendant used force on the woman on a particular occasion, or created a fear of physical violence in her mind on that occasion, and that it was done without her consent. If the defendant is found guilty A defendant found guilty of assault, or who pleads guilty, may be: imprisoned, or fined, or put on a good behaviour bond with various conditions attached, or in certain circumstances, have the charge dismissed without a conviction recorded against him (Crimes (Sentencing Procedure) Act 1999 s.10). The court must make an Apprehended Violence Order against him (Crimes (Domestic and Personal Violence) Act 2007 s.39), unless it is satisfied that it is not required for example, because there is an existing Apprehended Violence Order in place. The court must also direct that the offence be recorded on the persons personal record as a domestic violence offence. The prosecution can also request that similar recordings are made in relation to previous offences which are domestic violence offences committed by that person. If the offence was particularly serious If the assault has caused serious injuries, the charge may be assault occasioning actual bodily harm, or attempted murder or manslaughter. These are indictable offences, which carry higher penalties (see chapter 14, Court). The defendant is brought before a magistrate who decides whether there is enough evidence for the matter to go for a full hearing before a judge

Bringing a private prosecution

A woman can commence a private prosecution for a criminal offence if the police have refused to act. How to proceed The woman should see the chamber registrar at the Local Court and lay a complaint. The chamber registrar issues a court attendance notice for the defendant to appear in court, and the case proceeds in the same way as if the defendant was charged by police (see Criminal charges on page 535), except that the police prosecutor is not involved.

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Criminal charges and Apprehended Violence Orders

A person can be charged with a criminal offence as well as being the defendant to an application for an Apprehended Violence Order arising out of the same incident. If a person is charged with a domestic violence offence the law is clear that an interim Apprehended Violence Order should be applied for by police and issued by a court until the charge matter has been finalised, unless there is a good reason not to issue an Apprehended Violence Order; for example, if an order is already in place (Crimes (Domestic and Personal Violence) Act 2007 ss.40 and 49). The criminal charge and the Apprehended Violence Order perform different functions. A criminal charge deals with past actions, and penalises a person for them, while an Apprehended Violence Order provides protection in the future by stating that the defendant is not allowed to do certain things otherwise he may be subject to a criminal charge and penalty.

Seeking advice In a private prosecution for a criminal offence the woman must prove the case. She should first seek legal advice from either: the Domestic Violence Advocacy Service a private solicitor the Legal Aid Commission, or a solicitor working with the Womens Domestic Violence Court Assistance Scheme, if it operates at the Local Court where she is bringing the case. What are the alternatives? This course of action is extremely difficult for almost anyone. If police have refused to lay charges, a better result may be gained through channels of complaint: the local patrol commander the Chief Superintendent of Police the police prosecutions unit the Police Commissioner the NSW Ombudsman the Minister for Police the NSW Attorney General the womans local member of state parliament.

The victim does not have to be living with the person who abuses them. It is possible to apply for an AVO against a person without bringing criminal charges. The order does not give the person a criminal record. However, breaching an AVO is a criminal offence, for which a person may be arrested and charged. Types of Apprehended Violence Orders AVOs can be either domestic or personal. Apprehended Domestic Violence Orders Apprehended Domestic Violence Orders (ADVOs) are made when there is a domestic relationship between complainant and defendant, including relationships with: a current or former spouse a current or former de facto partner (including same-sex de facto partners) a current or former relative a person who lives or used to live in the same household or residential facility a person who has or had an intimate relationship with the complainant, sexual or otherwise a person who depends or depended on the care (paid or unpaid) provided by the person in the case of an Aboriginal or Torres Strait Islander person, a former or current part of the extended family or kin according to the indigenous kinship system. Apprehended Personal Violence Orders Apprehended Personal Violence Orders (APVOs) protect a person from someone where there is no domestic relationship linking the two people; for example, neighbours or work colleagues.

Apprehended Violence Orders

In NSW the best protection against domestic violence is an Apprehended Violence Order (AVO). AVOs are regulated by the Crimes (Domestic and Personal Violence) Act 2007. What Apprehended Violence Orders do The court grants AVOs to protect people against acts of violence such as physical assault, nonphysical abuse such as harassment or intimidation, and damage or threatened damage to property.

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The difference between ADVOs and APVOs

An Apprehended Domestic Violence Order (ADVO) and an Apprehended Personal Violence Order (APVO) both have the same legal effect once they are made. There are, however, some significant differences in the way the ADVO and APVO matters are initiated and progress through the courts: The police have a particular obligation to apply for an AVO in domestic violence cases (see Police application for an AVO on page 539). Legal aid is available to complainants in ADVOs and, in exceptional circumstances, to defendants (see The Legal Aid Commission on page 533). It is not granted to either party in APVO matters. APVOs may be referred to a community justice centre for mediation. This should not happen with ADVOs.

Costs
In ADVO matters, costs may only be awarded against the complainant if the application is dismissed, and the court is satisfied that the complaint was frivolous or vexatious. There are also provisions protecting the police against costs orders in ADVO matters unless the court is satisfied that the police officer made the complaint knowing that it contained matter that was false or misleading in a material particular (Crimes (Domestic and Persoanl Violence) Act 2007 s.99). In APVO matters there are no such protections, and costs may be awarded against unsuccessful complainants or defendants under the Criminal Procedure Act (ss.213, 215).

Who can be covered? An AVO provides protection from assault, molestation, harassment, threat, interference, stalking or intimidation to anyone with whom the protected person has a domestic relationship, whether they live with the person or not. AVOs that specifically include another person The law gives courts the power to extend the protection of an AVO to a person who has a domestic relationship with the person seeking protection. Where another person is also at risk of violence or other harassing or abusive behaviours from the defendant they can be specifically named on the complaint as a protected person, and receive the protection of any additional orders made. The courts are required to include as a protected person under an AVO any child with whom the adult seeking protection has a domestic relationship (unless there are good reasons for not doing so) (Crimes (Domestic and Personal Violence) Act 2007 s.38). Where only the child needs protection For a child to be covered by an adults AVO, the adult must hold his or her own fears of the defendant. It is not enough that the adult fears only for the safety of the child. If a child under 16 is the specific person in need of protection, or if their mother is not fearful of the defendant, or if the childs circumstances and needs are different from the mothers, the police must apply for the AVO to protect the child. Grounds for an AVO An AVO is made by a magistrate if they are satisfied, on the balance of probabilities, that the person seeking the order has reasonable grounds to fear, and in fact fears, that the defendant will:

commit a personal violence offence, or engage in intimidation or stalking. Where proof of actual fear is not required A person under 16 or a person who has an appreciably below average general intellectual function is not required to prove they are actually fearful of the defendant. Proof of actual fear is also not required where, in the opinion of the court, a person has been the victim of a personal violence offence, there is a reasonable likelihood that a personal violence offence may be committed, and the making of the order is necessary to prevent further violence. What an AVO may contain An AVO can include a range of conditions that prevent the defendant from doing certain things. An AVO cannot make the defendant do anything, such as attend an anger management course. What conditions should be included A woman seeking an order should discuss her circumstances with a lawyer or the police to work out the conditions that should be included in the order to make sure she gets the protection she needs. The court only makes orders it believes to be necessary; it will not make orders just in case. Standard conditions All AVOs contain three standard conditions called the mandatory orders, so named because the law states that they must be included in every AVO (Crimes (Domestic and Personal Violence) Act 2007 s.36). These orders prohibit the defendant from: assaulting, molesting, harassing, threatening or otherwise interfering with the woman

21 Domestic violence 539

engaging in conduct that intimidates the woman, and stalking her. These three orders extend to anyone with whom the woman has a domestic relationship. Other conditions An AVO may also include conditions stopping the defendant from: entering the persons home or workplace contacting or approaching the person approaching the persons home for 12 hours after drinking or taking drugs. Must the order specify an address? There is a presumption that a protected persons home address will not be included in an AVO, subject to certain exceptions (Crimes (Domestic and Personal Violence) Act 2007 s.43). The woman does not have to specify her home or work address to have them protected under the terms of her AVO. For example, an order that does not specify an address could say: Not to knowingly go within 200 metres of the premises at which the protected person may from time to time reside. Nonetheless, many magistrates are unwilling to make an order in relation to home or work without a specific address being provided. The court will not include the address of the person in need of protection in an order unless it is satisfied that: the defendant already knows the address, or it is necessary to achieve compliance with the order, and the persons personal safety or property will not be seriously threatened or likely to be damaged, or the person (if over 16) consents to it being included. In the case of a health care provider, the address of the health care service is to be stated, not the providers residential address (Crimes (Domestic and Personal Violence) Act 2007 s.44). Exclusion orders An order prohibiting a defendant from entering or living in the family home is called an exclusion order. In deciding whether to grant an exclusion order the court considers: the accommodation needs of the complainant and the defendant the effect of the order on children who normally live at that address the consequences for the person in need of protection and any children if the order is not made.

A court can make an exclusion order regardless of whether the defendant owns the premises or is the person named on the lease it makes no difference whether the defendant has a legal or equitable interest in the property. If the court decides not to make an exclusion order that has been sought, it must give reasons for not making that order. Ancillary property orders An ancillary property recovery order can be made when either the person seeking the protection of an ADVO or the defendant to the ADVO has left personal property at the premises which the other person occupies. The ancillary property recovery order allows access to the relevant premises to remove the property. Such an order is only relevant in proceedings relating to an interim or final Apprehended Domestic Violence Order. An order cannot be made for the defendant to retrieve personal property in the absence of the defendant. Police application for an AVO When police attend a domestic violence incident, or are informed by the victim that it has occurred, they may apply for an AVO on the victims behalf. There is a strong obligation on the police to apply for AVOs in particular circumstances. In police AVO applications, the police prosecutor presents the case in court, so it is not necessary for the victim to instruct a solicitor. Mandatory police AVOs The police must apply for an AVO if they suspect or believe that one of the following offences has been or is likely to be committed: a domestic violence offence an offence of stalking or intimidation an offence against s.227 of the Children and Young Persons (Care and Protection) Act relating to abuse of a child under 16. When police need not apply for an AVO Police need not apply for an AVO where they believe that: the woman intends to make a complaint herself (see Private applications for an AVO on page 540), or there is a good reason (which must be recorded in writing by the police officer) not to make the application.

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540 The Law Handbook AVOs to protect children The police must apply for an AVO for a child under 16 when a domestic violence offence, or an offence of stalking, intimidation or child abuse has been committed or is likely to be committed (Children and Young Persons (Care and Protection) Act). There are no exceptions. Police have a similar obligation to apply for Provisional Orders for a child under 16. Specific protection for children under 16 Only a police officer can apply for an AVO for a child under 16 if the child is the specific person in need of protection. For example, a young woman of 15 who is being stalked and harassed by her ex-boyfriend must contact the police to apply for an AVO to give her protection. She cannot make the application herself, nor can a parent make an application on her behalf. Hearing the application An application for an AVO, or the variation or revocation of an AVO, for a child under 16 must be heard in a closed court unless the court orders otherwise. Even if the court is open to the public, it may direct any person (other than someone directly interested in the proceedings, such as the defendant) to leave the courtroom when any witness is giving evidence. A child should not be required to give direct evidence unless the court believes that it is in the interests of justice for the child to do so. Children have a right to have a support person with them while giving evidence in AVO proceedings. Private applications for an AVO A person who has been or is experiencing violence from a current or former partner, or anyone else with whom they have a domestic relationship (such as a parent or sibling) may apply for an AVO by contacting the chamber registrar at the Local Court and making a detailed application. An appointment may be necessary. If the person is afraid that the violence will continue or increase as a result of the application, this should be explained to the chamber registrar and an interim order requested. In this case the person will have to go into court to obtain the interim order. Legal advice should be sought about appearing at court and making sure that the terms in the order will provide effective protection. If the person seeking the order is a woman, she should contact the coordinator of the Womens Domestic Violence Court Assistance Scheme (if it operates at her branch of the Local Court) to tell them when she will be at court, find out whether a solicitor is rostered on the scheme to represent her, and find out the location of the room used by the scheme as a safe place. This information may be available from the officers of the Local Court where the complaint is lodged. If the risk is serious If the chamber registrar considers that the risk to the woman is serious enough, the matter can be heard in court before a magistrate immediately, and the woman can apply for an urgent interim order. It is up to the woman to convince the chamber registrar of the need for this. Interim orders are especially appropriate where the woman is worried that the offender will become more violent once he knows that action is being taken against him. Obtaining an interim order To get the order, the woman must go to court and will generally have to give evidence. Interim orders are granted where the court considers it is necessary or appropriate in the circumstances to give the person immediate protection. The court considers these applications very carefully, as it is possible for orders to be made against a defendant before he has been served with a copy of the application. The interim order comes into force as soon as it is served on the defendant, and will be accompanied by a court attendance notice notifying the defendant of the date and time he is required to appear in court. The defendant can then attend court and argue that a final order should not be made. If the case is adjourned If the case is adjourned at any time, the complainant can seek an interim order or have her existing interim order continued. Where both parties consent, a registrar or a magistrate can continue an interim order until the next day in court. Commencement of AVO proceedings AVO proceedings are commenced by either the police or a chamber registrar at a Local Court issuing an application notice under Pt 10, Div.2 of the

21 Domestic violence 541

Crimes (Domestic and Personal Violence) Act 2007. The chamber registrar initiates the proceedings by issuing an application that contains the grounds of the application and a Notice to the Defendant to attend court at a certain date and

place. If an interim order has been made, this will also be served on the defendant. A police officer can issue and serve an application without attending the courthouse.

Provisional Orders
When the situation is serious, the police may apply for a Provisional Order. A Provisional Order is an interim Apprehended Domestic Violence Order or interim Apprehended Personal Violence Order that the police may apply for by telephone, facsimile or other communication device. Provisional Orders are available at any time where the police believe an AVO needs to be made immediately to ensure the safety of the person or to prevent substantial damage to any property of that person. Police must apply for a Provisional Order if they attend an incident where they believe a domestic violence offence or an offence of child abuse against a child under 16 has been committed or is likely to be committed, unless, as with AVOs generally, they believe the victim is going to apply for their own AVO or there is a good reason (which must be recorded in writing) not to apply. The terms that may be included in a Provisional Order are similar to those available in an AVO made by a court. The police officer may direct the defendant to remain at the scene so that the Provisional Order may be served on them. If the defendant refuses to do so, the police may arrest and detain them at the scene, or take them to a police station. It is not necessary for the police to make a further application for an AVO. The Provisional Order contains a court attendance notice advising the defendant of the date and time to appear at court. The order ceases to have effect when: it is revoked, or a court makes an order (interim or final) about the complaint, or an order is served on the defendant (if the defendant is not in court). In most cases, Provisional Orders can remain in force for up to 28 days, to allow enough time to bring the matter to court.

Notification of the defendant The court cannot make a final AVO unless it is satisfied that the defendant in the proceedings knows about the application. The defendant is legally notified when the documents (containing the application and the court attendance notice) are given to or served upon him, which is done by a police officer from the patrol closest to his home. The notice sets out the date and time he should attend court (the first return date). The officer who gives the papers to the defendant must swear an affidavit that they did so, or provide a statement of service. The affidavit or statement must be sent to the court. Except in special circumstances, the court will not proceed to make a final AVO where there is no proof of service. Substituted service Where it is not reasonably practicable to serve the defendant personally, the court may order the application to be served in another way (substituted service). This means service on some other person who has contact with the defendant, such as their parents, or service by registered post. The court only orders substituted service if it is satisfied that regular service has been tried unsuccessfully.

The court may also order that a warrant be issued for the purpose of detaining the defendant in order to serve him with an application or provisional or interim order. Applications served by a warrant Warrants may be used where the defendant is unable to be located. For example, the defendant has no fixed address or is attempting to evade service. Getting assistance If the woman applied for the AVO through the chamber registrar she will usually have only very short notice of the hearing. In this case she may contact the police prosecutor at the police station nearest to the courthouse for help in court on the first day in having interim orders made or appropriate bail conditions set until the case is next in court. While the police prosecutor can act for her on later appearances in court there is no guarantee of this, unless the police have initiated the AVO application. If she has applied through the chamber registrar, it is better if she has her own solicitor in a private application for an AVO.

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542 The Law Handbook Will the defendant get bail? Bail involves an agreement to attend court to answer a criminal charge. With most offences, there is a presumption in favour of bail (that is, the person will be granted bail unless there are good reasons not to do so). However, bail is often subject to conditions. A defendant in AVO proceedings can be placed on bail conditions even if there is no criminal charge (Crimes (Domestic and Personal Violence) Act 2007 s.83). Conditions may include that the defendant is not to: approach, harass or molest the woman come within a certain distance of her home telephone or contact her except through her lawyer (or some other person). There is no presumption in favour of bail if the defendant has breached an AVO by an act of violence, or has a history of violence against anyone. If the person breaches bail conditions A person who breaches bail conditions can be arrested, held in police custody and brought again before the court for a review of the conditions. Getting legal representation
To get a solicitor to represent her in court, the woman should contact: the Domestic Violence Advocacy Service at Womens Legal Services NSW, for representation or referral to a solicitor in her area, or her local Womens Domestic Violence Court Assistance Scheme coordinator (there are 33 funded schemes in NSW attending 47 Local Courts, and there are voluntary services in many areas), or a private solicitor (preferably one who will apply for legal aid if it is applicable), or the Legal Aid Commission (see Contact points for chapter 5, Assistance with legal problems).

has not been served). Or he may have advised the court that because of short notice (for example, he was served the night before) he cannot attend due to work commitments. In both these situations the case will be adjourned, provided the woman still wants the order. If she does not have an interim order she can ask for one on this date, or have her interim order continued if she already has one. If the defendant does not contest the order If the defendant turns up, he is asked if he agrees to abide by the conditions of the order. If he agrees, the AVO is made by consent, and it is not necessary to present evidence against him or for him to admit any of the facts in the application. The magistrate makes sure he knows what is in the order and that he can be fined or imprisoned if he breaks it. The order comes into force immediately. If the defendant does contest the order If the defendant does not agree to an order being made, the magistrate sets a hearing date, perhaps several weeks or even months away, when the court can hear the whole story. In this case, the woman should ask either for an interim order or to have the defendant placed on appropriate bail conditions. The woman should obtain a copy of the interim order or bail conditions before leaving the court and carry it at all times she will need to show it to the police if the defendant breaches it. At the hearing At the hearing the woman, and usually the defendant, give evidence and are cross-examined. Any witnesses are also required to give evidence and be cross-examined. The womans lawyer should be supportive and prepare her for the type of questions she will be asked. Her lawyer should also discuss any other available evidence she might have, such as medical records, telephone records or letters. It is sensible for her to seek support from the Womens Domestic Violence Court Assistance Scheme, family or friends throughout the hearing. After considering all the evidence, the court decides, on the balance of probabilities, whether she has reasonable grounds to fear the defendant.

In court What happens when an AVO case is first in court depends on whether or not the defendant is present and, if he is, whether or not he agrees to the order being made. If the defendant is not present in court There are several reasons why a defendant may not turn up at court on the first day. He may not have received the application and court attendance notice telling him to come to court (that is, he

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If the defendant offers an undertaking

If the defendant attends court, he may offer to give an undertaking. An undertaking is a promise he gives to the court. It can be in the same terms as an AVO, and it can be written or oral. If the woman accepts the undertaking and the magistrate also accepts it, the application for an AVO is withdrawn. From the womans point of view, it is always better to get an order from the court than an agreement or undertaking from the defendant. Under the law, the police can arrest him for a breach of an AVO but they probably wont help if it is just an undertaking that has been breached, unless the breach involves a criminal offence such as assault or malicious damage. If the woman accepts the defendants undertaking, and he breaches it, she can make another application for an AVO through the police or the chamber registrar at any time.

(Appeal and Review) Act 2001. The court can grant the annulment if the magistrate is satisfied that: the defendant was not aware of the proceedings until after the order was made, or the defendant was prevented from attending court due to illness, accident or some other misfortune, or it is in the interests of justice to annul the order. The defendant can apply to annul the AVO through the chamber registrar. The AVO should not be annulled without the woman being notified of the application. If the AVO is annulled If the AVO is annulled, the court must consider the womans application for an AVO as if the ex parte AVO was never made, and the defendant has the options outlined above he can consent to the AVO or he can contest it and ask for a hearing. Explaining the order When a court makes or varies an AVO it must explain the order to both the protected person and the defendant (if they are present in court). The explanation must include: the effect of the order the consequences of a breach the rights of the protected person and the defendant in relation to the order. The explanation should, if possible, be in a language understood by both parties. Both the protected person and the defendant must also receive a written explanation. Usually this is given to them when they collect the final AVO from the court office. The order is valid, however, even if the court fails to do this. Enforcing the order The woman should obtain a copy of the order before she leaves court on the day it is made, and carry it with her at all times. The court also sends a copy to her local police station. Details of AVOs are stored on the Police Services Domestic Violence Central Data Bank. The woman should contact police immediately if the defendant breaches any of the terms of the order. Penalties for breach Breach of an AVO is a criminal offence. The police can arrest the person without a warrant and take him back before the court.

Orders made in the absence of the defendant If the defendant does not appear in court after being served with a court attendance notice, a final AVO may be obtained in his absence. This is called an ex parte order. The woman still has to satisfy the court, on the balance of probabilities, that she has a reasonable fear of the defendant. In most cases she is asked to give evidence. She must swear, or make an affirmation, that her evidence will be the truth. Either the police prosecutor or her own solicitor (whichever is appropriate) then asks her a number of questions. The magistrate may also ask her some questions. The magistrate then decides whether to grant the AVO. If the AVO is granted, it must be served on the defendant before it is enforceable. Once it is served the defendant may be charged with a breach if he contravenes any of its terms and, if found guilty of the breach, fined or imprisoned. Family law orders
A person who has applied for an AVO or a variation of an AVO must tell the court about any family law parenting orders or any application for such orders that is pending (see Parenting after separation in chapter 26, Family law). The court must consider family law orders, and make sure that the AVO does not affect contact between parent and child. Failure to inform the court of existing or pending family law orders, however, does not make the AVO invalid.

Applying for annulment If an AVO is made ex parte against a defendant, the defendant can make an application for the annulment of that order under s.4 of the Crimes

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544 The Law Handbook If the court decides beyond reasonable doubt that he breached the order, he can be liable to a penalty of up to two years jail and/or a fine of $5500. Getting an Apprehended Violence Order by private application
1 Make an appointment to see the chamber registrar at your nearest Local Court. Explain that you want an AVO, and why. If you are really frightened, ask the chamber registrar to have your matter heard as soon as possible so that you can seek an interim order: If an interim order is made, the defendant will be told. He will also be told to attend the court on a specific date at a specific time. The order is not enforceable until he gets it if he was not at court when it was made. If an interim order is not sought, the defendant will be told when he should attend court. 2 The first day at court, a few weeks after the application for the AVO, is for the magistrate to find out how you and the defendant intend to proceed. You should get the police prosecutor to help you if you do not have a lawyer. If the defendant does not come to court, but there is proof he got the documents telling him about the case, an order can be made anyway. You will probably have to give evidence. If he does not come to court and there is no proof that he got the documents about the case, it will be put off to another date so the documents can be given to him. If you need protection until then, ask for an interim order, or ask for it to be continued if you have one already. If he comes to court and agrees to the order being made, he does not have to admit the facts in the application. The order can be made straight away. If he comes to court and asks for the case to put off so that he can get legal advice, the court generally puts it off for two weeks, or longer. If he comes to court and does not agree to the order being made, a date is fixed for a hearing. You may need to ask for an interim order, or to have your interim order continued. 3 At the hearing you must show the court that you are afraid of the defendant and that your fear is reasonable. You will have to give evidence. Doctors reports or photographs may be useful. Witnesses may also be called. The court will give you an AVO if it believes it is more likely than not that you need one. 4 If an AVO is made, keep a copy with you at all times. If he breaches the order, contact the police and show it to them. They can arrest him without a warrant.

circumstances change, such as where violence or harassment has increased, or the woman and the defendant wish to resume living together and there is an order excluding him from her home. Changing an order may involve: adding further prohibitions or restrictions amending certain terms deleting terms extending the length of time it is in operation. An application to vary or revoke an order may be made by the protected person, the defendant or the police. The applicant must state why they are applying for a change, as well as the change they are seeking (revocation, variation or extension). The person affected by the application, whether the protected person or the defendant, is notified of the application and summoned to appear in court to answer it. When the court may not hear the application The court can refuse to hear the application if it is satisfied that there has been no change in the circumstances on which the AVO was granted in the first place, and that the application is in effect an appeal against the making of the order. If the other party has not been served It is not normally possible to vary an AVO in any way if the other party has not been served with the application. The only exception to this is where the protected person wishes to extend an AVO but cannot serve the defendant before the AVO is due to expire. If the application to extend the AVO is lodged before the day on which it is due to expire, the court will extend it for up to 21 days beyond its expiry date (Crimes (Domestic and Personal Violence) Act 2007 s.73). Further orders can be made from time to time before the order ceases to have effect. If there is more than one protected person When more than one person over 16 is protected by the AVO, a variation or revocation application must be served on all persons protected by the AVO. A variation will only apply to the person applying to vary or revoke the order unless the court is satisfied that the other persons protected by the AVO have also consented to the application. Where children are included in the AVO Where a child is named as a protected person on the order, the police must make any application to vary or revoke it.

Variation or revocation of an AVO It is possible (in fact, it may be necessary) to revoke or change the terms of an AVO when

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Appeal to the District Court Either the complainant or the defendant can appeal to the District Court against: the making of an AVO, or refusal to make an AVO, or the granting of an application to vary an AVO, or refusal to vary an AVO, or the revocation of an AVO, or refusal to revoke an AVO. Time limits Any appeal to the District Court must be made within 28 days of the decision. If a person misses the 28-day deadline, it is possible in some cases to ask for leave (or permission) to bring an appeal within three months of the decision. How appeals are heard Appeals are by a rehearing on the transcript of the Local Court evidence. The District Court will give leave to introduce new evidence only if it is satisfied that it is in the interests of justice to do so. Appeals about interim orders The making of or refusal to make an interim AVO cannot be appealed. External protection orders A protection order made in any Australian or New Zealand jurisdiction can be registered in any Local Court in NSW by applying to the registrar of the court on the approved form with a copy of the external order and evidence of service. The registrar will either: register the order, or refer it to the Local Court magistrate for any adaptation or modifications required to ensure consistency with NSW provisions before registering it. Once it has been registered, the order is enforced in the same way as an AVO made in NSW. Any variation or revocation of the order in the state or territory where it was made does not affect the validity of the registered order in NSW. The registrar of the court must provide the commissioner of police with a copy of the registered order. However, the registered order cannot be served on the defendant without the protected persons consent. A woman should not give this consent if she wishes to conceal her whereabouts. Moving interstate It is also possible to register an AVO made in NSW in any state or territory of Australia or in New Zealand.

A woman wishing to move away from NSW can contact the Womens Legal Service in the state or territory she is thinking of moving to for further advice about registration procedures in that particular state or territory. Do AVOs work?
Many women find an AVO helps in stopping or reducing violence at home. Once the offender understands that their behaviour is to be made public and that the community will not tolerate it, they often choose to stop behaving violently. A study on the effectiveness of the AVO scheme conducted by the NSW Bureau of Crime Statistics and Research in 1997 found that positive changes occurred in the lives of the majority of the people involved in the study, and that there was a reduction in the prevalence of each behaviour prohibited by the AVO legislation. Domestic violence is a very serious matter, which can result in serious injury, or murder. Those who think a court order will not help should probably think about getting away disappearing for a while. A womens refuge might be a safe place to begin. However, a woman should obtain legal advice before moving away as other issues such as family law orders may need to be considered.

Other protective orders

There are other court orders that can be made against a violent person in a relationship. They are used less than AVOs, and can be more complicated to enforce, but they may be useful for women who are already involved in proceedings under the relevant Acts. The NSW Property (Relationships) Act Under s.53 of this Act, a woman can ask the Local Court for an injunction for her personal protection and restraining the other party to the relationship from entering her home or workplace. The injunction can include protection for any children. A breach can result in six months prison for the offender. Remedies such as a fine or a bond are also available for breach of an injunction. The federal Family Law Act A married woman can apply to the Local Court or the Family Court for a similar injunction under s.114 of the Family Law Act. If the order is broken, the husband is regarded as being in contempt of the court and can be sentenced to imprisonment, put on a recognisance, or fined (Pt 13A). Other injunctions under the Act can be sought in relation to children, and can give protection to either parent or child (s.68B).

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546 The Law Handbook

Family law arrangements

The Family Law Act recognises a childs legal right to have a meaningful relationship with both parents. The Act lists factors to be considered in determining who a child will live with (previously referred to as residence) and how much time a child will spend with the other parent (previously referred to as contact). The Act recognises that domestic violence is a relevant factor in considering whether arrangements are in the childs best interests.

Despite this, the Local Court is reluctant to prevent parents spending time with children even when serious violence is alleged. Where spending time with a parent and protection are incompatible The Family Court must make orders that are in the best interests of the child (which includes a consideration of family violence). The court should make sure its orders do not expose children or their primary carers to violence, and must also try to resolve any inconsistencies between the family law order and an AVO.

The Family Court and AVOs

A study (Rhoades, Graycar and Harrison (1999) The Family Law Reform Act 1995: Can changing legislation change legal culture, legal practice and community expectations?) found that in many cases where there had been a refusal to suspend contact at the Local Court level, the Family Court had ultimately suspended contact at the full hearing of the application. This is a cause for concern, as often there is a long wait for Family Court hearings and in the meantime the residential parent and the children may be at risk during contact. Much is said in the media about the use of unfounded AVO complaints to gain some advantage in childrens matters in the Family Court. This belief is possibly the reason the Local Court fails to take proper account of complaints of family violence when considering contact applications. The same study found that it was a myth, without foundation in all but a few cases.

Where there are inconsistencies If a family law order is inconsistent with an AVO it overrides the AVO, but only to the extent of the inconsistency; for example, where the AVO says a man must not contact a protected person and the family law order says he must contact her to arrange to see the children, he is permitted to contact her only for that purpose. What the court may do If a woman already has a family law order when she applies for an AVO, she can ask the magistrate hearing the AVO to change or discharge the family law order if it conflicts with the AVO. The court may also do this on its own initiative. These provisions are found in the Family Law Act (s.68P). For the Local Court to vary a family law order

there must be new material before it that was not before the court making the original order. A magistrate hearing an application for an AVO may change a family law order if satisfied that someone has been or is likely to be exposed to violence because of the order. If only an interim AVO is made at that time the court cannot discharge the family law order, but it may make other types of changes, including suspension. The changes last as long as the interim order or for 21 days, whichever is shorter. Changes made to a family law order on the basis of an interim AVO cannot be appealed. Changes made to a family law order because of a final AVO may be appealed.

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Contact points
If you are deaf or have a hearing or speech impairment and/or you use a tty or a computer with a modem, you can ring any number through the National Relay Service by phoning 133 677 (local and chargeable calls) or 1800 555 677 (free calls). For more information, see www.aceinfo.net.au.

Legal and government resources

Australian Childrens Contact Services Association
www.accsa.org.au ph: 9390 5366 A list of DOCS offices is in Contact points for chapter 8, Children and young people. Bega 6492 5002 Blacktown 9671 9126 Blue Mountains/Lithgow 4782 4155 Bourke/Brewarrina 6872 1200 Broken Hill (08) 8087 2053 Central Coast 4350 3064 or 4325 6941 Coffs Harbour 6650 0302 Downing Centre (Redfern) 9698 7277 Dubbo 6884 7388 Hastings 6583 4179 Hawkesbury 4587 8877 Hornsby 9488 2475 Hunter 4940 8766 Illawarra 4228 1499 Inner West 9744 1866 Kempsey 6563 1479 Lismore 6622 3558 Liverpool/Fairfield 9601 6988 Macarthur 4640 7333 Maitland 4934 5332 Manly/Warringah 9971 4499 Moree 6752 7135 Newtown 9559 2899 Northern Rivers 1300 720 606 or 6621 1044 Nowra 4423 8507 Parramatta/Ryde 8833 0922 Penrith/Mt Druitt 4731 5098 Redfern 9698 7277 Southern Sydney 9589 1200 Taree 6553 0009 Wagga Wagga 6921 6227 Waverley 9349 8200

Child Support Agency

Director of Public Prosecutions, Office of

www.odpp.nsw.gov.au ph: 9285 8606

www.csa.gov.au ph: 131 272 complaints: 132 919 info service (existing clients): 131 107 change of assessment team: 131 141

Domestic Violence Advocacy Service

Childrens Contact Centres

Albury-Wodonga Childrens Contact Service 6051 3533 Canberra Contact and Changeover Centre 6162 5800 Centacare Childrens Contact Service Campbelltown and Wollongong 4640 8527 Centacare Childrens Contact Centre Nowra 4421 8248 Central Coast Access Centre Wyong 4351 3155 Central West Contact Service 9893 7949 Interrelate Coffs Harbour Childrens Contact Centre 6651 1010 Interrelate Dubbo Childrens Contact Centre 6882 4699 Interrelate Lismore Childrens Contact Service 6621 4970 Interrelate Orange Childrens Contact Centre 6360 0895 Relationships Australia Childrens Contact Service Wagga Wagga 6921 8844 Relationships Australia Rainbow Childrens Contact Service Broadmeadow 4940 1500

ph: 1800 810 784 or 8745 6999 interpreter service: 131 450 (ask the interpreter to contact us on 9749 7700

Immigration Advice and Rights Centre (IARC)

www.iarc.asn.au Admin ph: 9279 4300 Advice ph: 9262 3833 (Tues and Thurs 24 pm)
Parramatta Migrant Resource Centre

ph: 9687 9901

Immigrant Womens Speakout

www.speakout.org.au ph: 9635 8022

National Womens Justice Coalition Inc.

www.nwjc.org.au ph: 6247 2075

Wirringa Baiya Aboriginal Womens Legal Centre

www.wirringabaiya.org.au ph: 1800 686 587 or 9569 3847

Witness Assistance Service

Womens Legal Services NSW

www.womenslegalnsw.asn.au ph: 1800 801 501 or 9749 5533
Domestic Violence Advice Line

Community Services, Department of (DOCS)

www.odpp.nsw.gov.au/was/was.html ph: 1800 814 534 (outside Sydney) or 9285 2502 (Sydney Central) There is a witness assistance service officer at each DPP office in NSW.

ph: 1800 810 784 or 8745 6999

Indigenous womens legal contact line

ph: 1800 639 784

www.community.nsw.gov.au ph: 9716 2222 DOCS helpline: 132 111 (to report child abuse and neglect, 24 hrs)
DOCS Domestic Violence Service

Womens Domestic Violence Court Assistance Schemes

Manager, WDVCAT

Womens Refuge Resource Centre

ph: 1800 656 463 (24 hrs)

ph: 9219 5791 Albury 6021 3059 Armidale 6771 4221 Bankstown 8713 7700

www.wrrc.org.au ph: 9698 9777 To access refuge accommodation, call DOCS 24-hour Domestic Violence Line: 1800 656 463

548 The Law Handbook

Family support and counselling

Adolescent Family Therapy and Mediation Service (RAPS)
www.relationships.com.au ph: 1800 654 648, 1300 364 277 or 9890 1500

Family Relationships Advice Line

ph: 1800 050 321

Parentline (Centacare)
www.parentline.org.au ph: 1300 130 052

Family Planning NSW

www.fpahealth.org.au
Head Office Ashfield Dubbo

Relationships Australia

Association of Childrens Welfare Agencies

ph: 8752 4300 ph: 8752 4300 ph: 6885 1544

Fairfield

www.acwa.asn.au ph: 1800 649 613 or 9281 8822

www.relationships.com.au ph: 1300 364 277 or 9418 8800 A list of Relationships Australias offices is in contact points for chapter 26, Family law.

Child Abuse Prevention Service

www.childabuseprevention.com.au ph: 1800 688 009 or 9716 8000

ph: 9754 1322

Newcastle

Salvo Care Line Crisis Centre (24 hrs)

www.salvos.org.au Salvo care line: 1300 36 36 22 or 9331 6000 Salvo youth line: 9360 3000 Crisis line: 9331 2000

Child Support Service

Legal Aid Commission

ph: 4929 4485

Education Unit

www.legalaid.nsw.gov.au ph: 9633 9916

ph: 4929 4485

Penrith Youth Health Centre

ph: 4721 8330 ph: 4283 2877

Smith Family

Commission for Children and Young People

www.kids.nsw.gov.au ph: 9286 7276

Wollongong Health Promotions Unit FPNSW

Deli Womens and Childrens Centre

www.thedeli.org.au ph: 9667 4664

Homeless Persons Information Centre

www.cityofsydney.nsw.gov.au ph: 1800 234 566, 9265 9087 or 9265 9081

www.smithfamily.com.au ph: 9085 7222 A list of metropolitan and regional offices is in Contact points for chapter 17, Debt.

St Vincent de Paul Society

www.vinnies.org.au ph: 9560 8666

Family Court National Enquiries Centre

Lifeline Telephone Counselling Service

ph: 131 114 (24 hrs) ph: 1300 131 114

Unifam Counselling and Mediation Service

www.unifamcounselling.org ph: 8830 0777

www.familycourt.gov.au ph: 1300 352 000 or 1800 622 395 (after hours)

Lifeline Information Service

Womens health centres

Sydney Womens Counselling Centre
www.womenscounselling.com.au ph: 9718 1955

Womens Health NSW

www.whnsw.asn.au ph: 9560 0866

For a full list of Womens Health Centres in NSW, see Contact points in chapter 26, Family law.

Lesbian and gay support

AIDS Council of NSW (ACON)
www.acon.org.au ph: 1800 063 060 or 9206 2000

Inner City Legal Centre

Another Closet: Domestic Violence in Gay and Lesbian Relationships

www.ssdv.acon.org.au

(incorporating Lesbian and Gay Legal Rights Service) www.iclc.org.au ph: 9332 1966

Lesbian and Gay Anti-Violence Project

www.avp.acon.org.au ph: 1800 063 060 or 9206 2066 report line: 9206 2116

21 Domestic violence 549

Internet
Australasian Legal Information Institute (AustLII) www.austlii.edu.au Child Support Agency www.csa.gov.au Department NSW Office for Women www.women.nsw.gov.au NSW Department of Community Services www.community.nsw.gov.au Family Court of Australia www.familycourt.gov.au Lesbian and Gay Anti-Violence Project www.avp.acon.org.au