Suburban Family Home

Domestic Violence Orders

There are two main types of AVO matters - 

 

Apprehended domestic Violence Order (ADVO)

Where the people involved are related such as wife/husband or an intimidate relationship, sister/brother, cousins. These are usually prosecuted by Police on behalf of the community, because Police have a concern about the protection of a person (who is called the Person in Need of Protection or PINOP).

 

Apprehended Personal Violence Order (ADVO)

There is no intimate relationship or the parties are not related. Typically persons that are known to each other like neighbours, friends etc. This is usually prosecuted privately, by each of the parties acting for themselves. 

In all cases, the person against whom the application is being made is the Respondent or Defendant and they can represent themselves or have a lawyer represent them.

In New South Wales, an Apprehended Violence Order is the main type of court process designed to protect against instances of Domestic Violence.  It is separate to, but related to, criminal matters. Acts of domestic violence are themselves assaults which are punishable by the Crimes Act 1900 (NSW) and remain part of the criminal justice system. But seeking orders to protect people from one another are the mains solution to domestic violence that the legal system offers the private citizen in 2021. 

An Application for an order can only be made by the person whose protection is sought (or a guardian of that person), or a police officer. Third parties cannot intervene and seek that kind of help. If a child is involved as the subject of an order, only Police can make an application. 

The Act governing these orders is the Crimes (Domestic and Personal Violence) Act 2007 and it has important information in it that affects how proceedings for domestic violence can be dealt with. It says that a domestic relationship is any relationship where you live together or have an intimate relationship with one another (even if you don't live together). The definition (in section 5(1) and 5(2) is extremely broad and intended to include the relationship between a dependant and a paid carer. 

The Act also provides a very powerful section that permits prosecutors to present evidence that they would not normally be able to present in a criminal matter - evidence about all aspects of a relationship going back years to include any act, reported or not, of violence, intimidation, stalking or any form of harassment. In recent years that has lead to evidence of attempts to dominate or control the relationship being presented - including financial management, restrictions over the use of phones, or trying to separate a person from their friendship circle.

THE PURPOSE OF THE DOMESTIC VIOLENCE SYSTEM

 

In John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512, Spigelman CJ stated at [20] (referring to repealed Pt 15A Crimes Act 1900):

The legislative scheme for apprehended violence orders serves a range of purposes which are quite distinct from the traditional criminal or quasi-criminal jurisdiction of the Local Court. The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking intimidation and harassment. Apprehended Violence Orders constitute the primary means in this State of asserting the fundamental right to freedom from fear. The objects served by such orders are quite distinct from those that are served by civil adversarial proceedings or proceedings in which an arm of the State seeks to enforce the criminal law.

SERVICE OF THE ORDER IS IMPORTANT

The law requires that the order, or an application for the order be served on you personally (Local Court Rules 2009). This is required by the Local Court Rules of 2009 subject to special exceptions that I can advise you on when you contact me. In practice, most AVO applications are served first by Police.

When you have been served you should politely accept the document and then immediately contact me to provide you with advice.  Take a photograph or a scan of the paperwork you have been served with so you can send that to me, and I can be quickly on top of the basis of the allegations.

You should NEVER contact the person seeking the order. Doing so might be a breach of a court order, or it could result in something happening or being said that could later be used against you. It can also add further to a situation that can be chaotic and confusing for everyone involved.

 

What are my options when served with an AVO?

There are a few options from here, each with pros and con and you should obtain legal advice before taking the next step. Generally these are the options:

Consent to the order

You can consent to the order as in its current terms that the Police have asked for, generally the Police request the AVO is in place for two years.

 

WARNING: There are consequences to consenting to an order including, working with children checks, work and firearms orders and these consequences can have an impact on your life for many years to come.

 

Object to the Order

 

You can disagree that the order should be made.  If you think the order should not be made against you, you can ask the other side to present the evidence they say supports their case. The court will make orders for filing and service of that evidence and both sides will have to do that. At that point you can consider if you still think you have a good defence or not and if not, you can always proceed to consent to the order.

But you must be careful, costs can be ordered against you and those costs can result in you losing a lot of money. It is not uncommon that the Court will order the Defendant to pay the prosecution's costs in AVO matters. It rarely happens that the prosecution pays the Defence costs. This is because of an unusual restriction in the Act against awarding costs on a party that seeks an AVO (designed to protect victims of domestic violence).

This is why it is critical that you do not represent yourself and that you obtain legal advice from an experienced professional before doing anything. Every case is different, no blanket advice (or Google Law Degree) will permit you to fully understand the particular features of a case - get advice from me and do it early on.

 If you do then 

The test for making an order is that the court must be satisfied on the balance of probabilities that a person has reasonable grounds to fear and in fact fears:

  1. the commission by the other person of a domestic violence offence against the person, or

  2. the engagement of the other person in conduct in which the other person intimidates the person, or stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.

How can Aaron Kernaghan Help me?

We can advise you how to respond to an AVO claim and how to protect your interests going forward. The last thing you want is to end up on a domestic violence register, have a criminal history or some other impediment to future work or international travel options. You must always be sure that your decision making around AVOs is informed by experience and not by lawyers looking to charge you as much money as possible for long protracted hearings.

 

Often, the best settlement to an AVO is to provide an undertaking to the court, or to agree to the AVO without admission. This reduces costs considerably and secures you a quick result. In other cases, it is more complex, particularly if children are involved and if you need access to the family home or other matters that make it so that you really have no option but to fight the AVO. If that is so, you can expect that we will set out for you the full detail of what is involved, what your costs will be and why those costs are so.

Most importantly when it comes to an AVO Aaron Kernaghan has extensive experience in both prosecuting and defending such applications. We will be able to tell you very quickly if you have a case and prepare and present that case in the best possible manner.

 

Contact Aaron on 0282510070.