Where am I now? lawlink > Index > Processes for responding to domestic violence > Protecting victims: AVOs and the civil legal process   Print this page Protecting victims: AVOs and the civil legal process Police called | Local Courts | The Children’s Courts | After an AVO is made/not made Police called Report to police: overview | Taking a report at the police station | Police entry into premises NSW Police procedures if a domestic violence offence is committed NSW Police procedures where an offender has left the scene and a domestic violence offence has occurred Telephone Interim Orders (TIOs) | Victim support | Dealing with perpetrators AVOs and children | Aiding and abetting | Cross applications Warrants | Firearms | Chart 6 - NSW Police called to the scene of domestic violence Report to police: overview The most immediate concern for a woman who has been, is being, or is about to be assaulted is immediate protection. This can be done by contacting the local police station or dialling 000. When phoning the police, a woman should give her name and address, emphasise the urgency of the situation, and ask for the name of the officer with whom she is speaking. Police have common law powers to enter a private house to investigate a complaint of domestic violence. Police can enter premises without a warrant: If they are invited by a member of the household, including a child who apparently resides there, to investigate whether a domestic violence offence has been committed or to prevent the Commission of a further offence, as long as the legal occupier (the person in whose name the lease is held or the house is owned) does not expressly forbid entry and the police officer believes on reasonable grounds that a domestic violence offence has recently been or is being committed or is imminent or is likely to be committed. if they are invited by the apparent and/or potential victim of the violence even if the legal occupier objects. If the police are refused access to the premises, they may apply for a warrant immediately over the police car radio (often called a telephone or radio warrant) to enter the premises. Back to top Taking a report at the police station Many incidents of domestic violence are reported at police stations. When a victim of domestic violence comes into the station, they should not be interviewed over the counter, a private location should be found. Where the victim prefers to speak to a female police officer all attempts should be made to accommodate this request. It is important also to highlight that this may not be possible and encouragement should be given for the victim to have a support person present during the interview. A COPS (Computerised Operational Policing System) entry is required for each domestic violence incident reported to the police. The victim should be provided with the NSW Police Victims Information Card. Police should not refer victims to a Chamber Magistrate. NB: Interview the victim and record the details in the official NSW Police notebook and record if an application for an AVO will be sought and by whom (police or victim). Have the victim sign the notebook if she/he wishes to make an application herself/ himself. Back to top Police entry into premises A police officer is to take only such action in the dwelling house as is reasonably necessary: To investigate whether a domestic violence offence has been committed To render aid to any person who appears injured To exercise any lawful power to arrest a person To prevent the commission or further commission of such a domestic violence offence. Police officers: Must inquire as to the presence of firearms in the house and, if informed that there is a firearm/ firearms must take all action as is reasonably practical to search for and seize the firearms Must remain in the house only as long as necessary to take such action as outlined above. Determining whether a domestic violence offence occurred includes police: Investigating the incident with reference to the definition of domestic violence offence, as defined in the Crimes Act 1900 Establishing who is/was present at the premises Checking as to the presence of children and checking on their welfare by sighting and/or talking to the children present Finding out the relationships between parties, including the current whereabouts of related adults or children not currently at the premises Inquiring as to what has occurred. If police believe a domestic violence offence has occurred they are instructed to: Obtain statements from witnesses/victims (include history, what has just happened, future fears). Witnesses/victims may include children Look for physical evidence (broken furniture or other items, bloodstains, torn clothing, weapons, evidence of alcohol/drug use, physical injuries) Arrange for photographs of the victim and scene to be taken Make comprehensive notes (hearsay evidence may be admissible later) Give strongest consideration to exercising their powers in favour of arrest. Rendering aid to any person who appears injured includes police: Finding out if any injuries require medical attention and render first aid as needed Calling an ambulance if necessary Advising those with non-serious injuries to seek medical attention at a later time Providing the victim with the NSW Police Victims Information Card. Police exercising any lawful power to arrest a person will consider the following: Police have discretion under common law whether to proceed with offences The NSW Police Policy is to act in favour of arrest when an offence has been detected. Police do not counsel or mediate Police are not to counsel or mediate between the parties. The police officer's role is to investigate possible offences. To prevent the commission or further commission of a domestic violence offence police must: Apply for a TIO/AVO on behalf of the victim (NB The victim may also be a child) where the police officer believes a relevant offence has been, is or is likely to be committed) If arresting and charging the defendant, ensure appropriate bail conditions are made if bail is granted Refer the victim to appropriate support services and/or the defendant If children are also living with the violence, as either witnesses or victims, inform the Department of Community Services and provide as much information as possible to ensure an adequate assessment/intervention plan can be made. Firearms If police have entered by invitation or warrant and they believe a firearm has been, or might be used to commit a domestic violence offence, they may take action to search and seize such firearms - including spearguns (s357(4) Crimes Act 1900) If they have entered by invitation or warrant, they must inquire about firearms, and take action to search and seize if they are told that firearms are present (s357H, Crimes Act 1900) If police have entered by invitation or warrant and are informed no firearms are present, but they reasonably believe there are (eg. there is prior history of firearms), they must apply to the authorised justice for a search warrant (s357I Crimes Act 1900). When inquiring about firearms and weapons police must consider the following points: Inquire with all persons within the premises as well as neighbours/informants, if appropriate If informed about firearms, take all action as reasonable to search for the firearms/weapons (never allow another person to get the firearm/weapon for the police). If firearms are on the premises consider other offences committed under the Firearms Act 1996 (eg. not licensed, firearms not kept in safe etc) Back to top NSW Police procedures if a domestic violence offence is committed Police must observe the following: Ensure the safety and protection of all persons who experience domestic violence, stopping the conflict and providing protection to victims are paramount Thoroughly investigate alleged domestic violence offences Consider specialist units available to collect evidence to support allegations (eg. crime scene examiners) Where injuries are sustained police should either call an ambulance or escort the victim to the hospital Photographing the victim's injuries should be considered If satisfied an offence has occurred, as the first option, police should strongly consider exercising their powers of arrest of the alleged offender to ensure the safety of the victim. The decision to charge is not the responsibility of the victim. Provide ongoing protection through appropriate charging, AVOs including TIOs, and bail conditions Ask about children, and if present, check on their welfare by sighting and/or talking to them Obtain notebook statement(s)/version(s) at the scene from all witnesses (this may include children) and ask them to sign that entry unless they object Be mindful of any other offences, such as firearms and weapons offences Where there is no common language use only an accredited interpreter. Never use family members to interpret Provide the victim with the NSW Police Victims Information Card, in accordance with the NSW Police Victim Support Policy and Procedures. Back to top NSW Police procedures where an offender has left the scene and a domestic violence offence has occurred When satisfied an offence has occurred, police will circulate details of offender as wanted via radio, including vehicle details and any known/possible destination. Apply for an AVO and seek urgent protection either by TIO or if appropriate an interim AVO. If all inquiries have been exhausted, a first instance warrant for the offender's arrest is to be sought; the Chamber Magistrate must then decide whether or not to issue the warrant. Complete a COPS entry to outline all action taken. If a breach of a TIO or AVO has occurred, investigate thoroughly. Any additional offences (eg. assault or malicious damage) should be considered. Back to top Telephone Interim Orders (TIOs) A police officer must make application for a TIO if the officer suspects or believes a domestic violence offence has recently been or is being committed, or is imminent, or is likely to be committed, against a person for whose protection an order is being made. A TIO can only be sought when it is not practicable to apply for an interim AVO at court (ie after hours or in isolated rural areas where access to court is extremely difficult) and the police officer has good reason to believe an order is necessary to ensure the safety of the victim or to prevent substantial damage to the victim’s property. The standard conditions of the TIO are that the defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person. If police believe that the victim is in imminent danger from the defendant they may request any or all of the following conditions: Prohibiting or restricting the defendant from approaching the protected person, and/or Prohibiting or restricting access by the defendant to any premises occupied by the protected person, the protected person's workplace or any place frequented by the protected person, whether or not the defendant has a legal or equitable interest in the premises or place, and/or Prohibiting or restricting the defendant from approaching the protected person or any such place within 12 hours of consuming intoxicating liquor or illicit drugs, and/or Prohibiting the defendant from destroying or interfering with the protected person's property. A TIO ceases to have effect when it is revoked or a court makes an order (interim or final) in respect of the complaint or, if the defendant is not present in court, when the court order is served on him. All TI0s, regardless of whether they include the standard term or additional terms, are usually in force for up to 14 days or when they cease to have effect. A TIO may be made for an extended period in special circumstances for up to 28 days if the authorised justice is satisfied that the Local Court closest to the place at which the application for the order is made is not sitting within the fourteen day period following the making of the order. TIOs may not be renewed and if the court purports to renew a TIO, it is deemed to be an interim AVO. Serving the TIO In order to serve the TIO on the defendant the police officer may direct the defendant to remain at the scene. If the defendant refuses to do so then the police may arrest and detain them at the scene or take them to a police station. A TIO is a complaint in itself which means that it is not necessary for the police to make a further complaint for an AVO. The TIO contains a summons advising the defendant of the date and time to appear at court in relation to the complaint. Back to top Victim support The NSW Police has a statutory obligation under the Victims Rights Act 1996 to implement the Charter of Victims Rights. Victim safety Safety strategies Following police intervention, many victims require support and advice regarding their continuing safety. It is important that police officers discuss a range of safety strategies with the victim to enable them to make choices about future actions. For example: Documents: suggest the victim keep important documents in a safe place that will be easy to access in a hurry. Suggested documents to include are drivers licence, birth certificates, Medicare card, credit card, passports, a copy of the AVO and Bail (if he/she has been charged), Keys: suggest keeping a spare set of car keys and/or house keys in the safe place in case the victim needs to get away quickly, Money: suggest some money (preferably coins) be put aside for telephone calls or the purchase of a telephone card, Luggage: suggest packing an overnight bag with a small amount of clothes if the victim needs to get away quickly. Where children are involved, suggest including a favourite toy. Officers should provide victims with emergency numbers and agencies that can assist. Officers should refer to the NSW Police Domestic Violence Victim Support Manual (available at every police station) for further details and a broader range of safety strategies for victims. High risk victims Where the victims express fears about their safety, officers should consider all measures contained in the NSW Police Domestic Violence Victim Support Manual to address the ongoing need safety needs of the victim. If the situation is of such a nature that it is clearly beyond the scope of the suggestions in the Manual, the police should consult with their Crime Manager. The Crime Manager will review the case and, if necessary, make contact with the Commander, Witness Security Unit to discuss an application for admission to the Witness Protection Program. Information and referral All police officers have a statutory obligation to comply with the NSW Government Charter of Victims Rights. Police officers should provide victims (both primary and secondary) with a ‘victim card' in accordance with NSW Police Policy. The officer must provide her/his details along with the time, date of report and COPS event number if known. If the event number is not known at the time, it should be provided soon after. Police officers should ensure the victim has access to and information about domestic violence services and agencies that are culturally appropriate. It is important that Police officers, in consultation with the victim, contact appropriate support officers within their Local Area Command or Region to assist with matters involving members of the Indigenous community (refer to Aboriginal Community Liaison Officer), ethnic community members (refer to Ethnic Community Liaison Officer) or the gay and lesbian community (refer to Gay and Lesbian Liaison Officer). Back to top Dealing with perpetrators Perpetrator behaviour Perpetrators of domestic violence are well practised at avoiding responsibility for their actions. In most situations, perpetrators will blame the victim or a range of other factors like being ‘too stressed', ‘inability to control anger', ‘pressures of work or home', ‘she hit me too’ and/or 'too many drinks'. If the NSW Police is to impact on the level of domestic violence in our community, it must challenge these excuses by taking decisive action. Failure to do so sends an inappropriate message that the perpetrator's behaviour is ‘not so bad' or ‘acceptable under the circumstances'. This approach simply confirms the perpetrator's beliefs and encourages ongoing abuse/violence. Many perpetrators try to resist any challenges to their behaviour. Any acknowledgment will often be accompanied by explanations and justifications in an attempt to engage an officer in ‘siding with their story of events'. They will give reasons such as the other person: Provoked the abuse/violence, Is unreliable or crazy, Does not understand the pressures the perpetrator is under. The NSW Police needs to give a clear message that domestic violence, in all its forms, is not acceptable and that an application for an AVO, and charges where applicable, will be made. Referral of perpetrators Police should not refer perpetrators to: Mediation services, Alternative dispute resolution services, or Community aid panels, as a means of dealing with their abusive or violent behaviour. These programs do not appropriately respond to the safety needs of victims nor do they adequately address offender behaviour. Where the offender is a child, other options may be available. In these circumstances police should contact the Youth Liaison Officer or the Domestic Violence Liaison Officer at the local police station or the Youth Policy Officer at the Policy Programs Unit for further information. In a recent report commissioned by the Commonwealth National Crime Prevention, entitled Ending Domestic Violence? Programs for Perpetrators (1999), the need for perpetrator program development was identified. However, the recommendations make clear the need for programs: To be administered by skilled accredited practitioners, To have clear linkages to the criminal justice system with mechanisms for monitoring offender behaviour, and To work from the premise of maximising the safety of victims. Police as perpetrators Police offenders are to be treated the same as other offenders. However, if police consider charging an officer with a domestic violence offence, they need prior permission from the Region Commander. The following steps should be taken: After hours permission to charge an officer with a domestic violence offence can be sought through the Duty Officer Inspector(DOI) Police should take steps to immediately inform the officer's Commander and record details in your official notebook The officer may have a Service revolver, but this does not alter the power to search and seize firearms. Record details of any firearms seized in the Miscellaneous Property and Receipt Book or Exhibit Book and store at the direction of the Commander at the charge location. Inform the defendant there is an obligation to submit a report to their Local Area Commander indicating the nature of the charge, the application for an AVO and any bail conditions placed upon them If police have to serve process on another officer, they should report promptly through their Commander to their Region Commander They make a detailed COPS entry, including the name of the Region Commander who gave the direction to charge, The Region Commander should have the matter reviewed by the Internal Affairs consultant. NB: Initiation of proceedings for an AVO constitutes a complaint under the NSW Police Service Act, If both parties are police officers and have their Service revolvers at the dwelling house, the attending officer will have to seize both firearms. Back to top AVOs and children Children who have witnessed or experienced domestic violence are likely to be traumatised and are considered to be at risk. Children may be primary or secondary victims. Only police officers can apply for an AVO for the protection of a child under 16 years at the time of the complaint. Police officers must apply for an AVO when they suspect or believe that an offence under s227 (Child and young person abuse) of the Children and Young Persons (Care and Protection) Act 1998 has recently been or is being committed, is imminent or is likely to be committed (but only if the person is a child under the age of 16 years) Police officers must sight the child Police officers MUST immediately report the Department of Community Services when a child has been present at a domestic violence incident Attending officers MUST complete a COPS printout from the Child at Risk screen, including a “handwritten” narrative and report concerns to DoCS Helpline. The original copy is to be forwarded to the DVLO Once notified the Department of Community Services staff will make a decision about the safety and well-being of the child based on the information provided and will inform Police of their decision in the “Feedback to Mandated Reporters” letter If further information is required by the Department of Community Services a caseworker can make a request under the Children and Young Persons (Care and Protection) Act 1998 Any additional information to be sent to the Department of Community Services MUST be supported and signed off by the DVLO, the Duty Officer or the Crime Manager A record of this request MUST be kept. Police may contact the DoCS local Community Service Centre seeking advice on the action taken following a Report. In certain circumstances children may be included in an adult AVO application provided the adult has a domestic relationship with the child. Determine whether the conditions fit the circumstances of both the child(ren) and the adult, otherwise it is important to apply for a separate AVO for the child(ren). Police must seek details of any Family Law Contact Orders when applying for an AVO for children. NB: Children must not be used to give evidence in matters where parents have cross applications. This process has the potential to compromise the child's safety. Section 562NA(3) of the Crimes Act 1900 clearly states that children are not to give evidence in AVO applications or applications to vary or revoke an AVO unless the court is of the opinion that without the evidence of the child there will be insufficient evidence before the court to allow it to make a decision. Back to top Aiding and abetting Charging a victim with aiding and abetting is not a priority in domestic violence matters. The appropriate action is for police to deal with the offender and have the person in need of protection attend court to have the conditions of the order varied Unless police can justify otherwise they should adhere to the following practice: The priority has to be taking the appropriate action concerning domestic violence. Any action regarding outstanding warrants should be secondary to the priority action, Officers should be aware that the defendant has made the choice to breach the AVO, for example by returning home, irrespective of whether the victim has invited or allowed the defendant to return. In these circumstances, the defendant should be charged with a breach of AVO. He/she has made the decision to return despite the conditions of the AVO. The defendant is bound by the terms of the AVO, whether made with consent or after the conduct of a hearing. The defendant breaches the AVO, not the victim. The victim is not responsible for the defendant's actions. Back to top Cross applications Police officers are not encouraged to take out dual or cross applications for AVOs. A police officer must take out an application for the person in need of protection and, if the defendant seeks an order, direct this person to see the Chamber Magistrate. Back to top Warrants Officers constantly deal with victims of crime who have outstanding warrants. When an officer is responding to a victim of domestic violence and there is an outstanding warrant the officer should consider the seriousness of the offences for which the warrant was issued and the seriousness of the present situation. Officers should deal with any allegations first and then negotiate other issues such as warrants or other warnings. Commitment warrants are most commonly dealt with by giving an additional seven days notice. First instant warrants require discrete negotiations to resolve. Officers need to assess the risks of alternative courses of action against the competing needs of the victim. Back to top Firearms Suspension and revocation of licence An officer MUST SUSPEND a firearm licence if he/she: ˇ Is aware that the licensee has been charged with a domestic violence offence (within the meaning of the Crimes Act 1900), or ˇ Has reasonable cause to believe that the licensee has committed or has threatened to commit a domestic violence offence (within the meaning of the Crimes Act 1900 (s22(2) Firearms Act, 1996), A suspended license does not authorise the possession or use of firearms during the period specified in the notice, A Suspension Notice should be served on the licensee within 24 hours of the incident and remains valid from the date of service up to the date indicated on the notice, A Suspension Notice may be served personally or by post on the licensee (s22(1) Firearms Act, 1996), The making of an Interim AVO against a person automatically suspends any firearms license held by that person, however the police should still serve a Suspension Notice on the person, In the case of an Interim AVO the firearms license remains suspended until the order is confirmed or revoked by the Court (s23 Firearms Act 1996), A licence that authorises a person to posses or use a firearm is automatically revoked if the licensee becomes subject to an apprehended violence order, If a firearms licence has been suspended or revoked, the licensee must immediately surrender to police: a) Any firearms in possession, and b) The licence, A police officer is authorised to seize any firearm in the possession of a person whose firearms licence has been suspended or revoked (s25 Firearms Act 1996), A police officer, or any person who claims to be the owner of a surrendered or seized firearm, may apply to the Local Court or Children’s court for an Order concerning the firearm’s disposal (s80 Firearms Act 1996), Where a firearm is confiscated and an offence has occurred it should be registered in the Exhibits Book in accordance with Exhibits Firearms and dangerous weapons (E-21 Police Service Handbook), When a firearm is confiscated and no offence has occurred it should be registered in the Miscellaneous Property and Receipt Book in accordance with Exhibits Firearms and dangerous weapons (E-21 Police Service Handbook). Back to top Suspension and revocation of permit A permit to possess and use a firearm may be suspended or revoked for any reason for which a firearms licence may be suspended or revoked (s30(4) Firearms Act 1996). Prohibited weapons: suspension and revocation of permit An officer MUST SUSPEND a prohibited weapons permit if he/she: ˇ Is aware that the permit holder has been charged with a domestic violence offence (within the meaning of the Crimes Act 1900), or ˇ Has reasonable cause to believe that the permit holder has committed or has threatened to commit a domestic violence offence within the meaning of the Crimes Act 1900 (s16(2) Weapons Prohibition Act 1998), A suspended prohibited weapons permit does not authorise the possession or use of prohibited weapon during the period specified in the Suspension Notice (s16(3) Weapons Prohibition Act 1998), A Suspension Notice should be served on the permit holder within 24 hours of the incident and remains valid from the date of service up to the date indicated on the Notice, A Suspension Notice may be served personally or by post on the permit holder (s16(1) Weapons Prohibition Act 1998), The making of an Interim AVO against a person automatically suspends any prohibited weapons permit held by that person, however the police should still serve the Suspension Notice on the person, In the case of an Interim AVO the prohibited weapons permit remains suspended until the order is confirmed or revoked by the Court (s17 Weapons Prohibition Act 1998), A prohibited weapons permit is automatically revoked if the permit holder becomes subject to an AVO (s18(1) Weapons Prohibition Act 1998), Once a prohibited weapons permit has been suspended or revoked, the licensee must immediately surrender to police: a) Any prohibited weapons in possession, and b) The permit, A police officer is authorised to seize any prohibited weapons in possession of a person whose prohibited weapons permit has been suspended or revoked (s19 Weapons Prohibition Act 1998), A police officer, or any person who claims to be the owner of a surrendered or seized prohibited weapons, may apply to the Local Court of Children’s Court for an order concerning prohibited weapon’s disposal (s40 Weapons Prohibition Act 1998), When issuing a Suspension Notice under either the Firearms Act 1996 or the Weapons Prohibition Act 1998, basically an officer is responsible for: Completion of the Notice of Suspension (3 part notice), Personal service or service by post of the original of the Notice on the person, who should be informed they: a)Are no longer authorised to possess or use firearms or prohibited weapons, b) May wish to provide the Commissioner of Police (within 14 days of the date of suspension) with reasons why the licence/permit should not be revoked (such reasons should be forwarded to the Commander for the Local Area Command from which the suspension was issued), Seizure of firearms, licence, Referral by fax of the duplicate of the Notice to the firearms registry with full particulars and circumstances concerning suspension, Retention of the triplicate of the Notice with all relevant papers at the Local Area Command, Advising the Firearms Registry if suspension has been lifted, Obtaining court results concerning the hearing of any Interim AVO, and determining whether revocation action should follow, Disposal of firearms or weapons taken into police possession, as appropriate, Advising the Firearms Registry about disposal of firearms or weapons. Back to top Local Courts Local Court information and referral | Privacy | Police applying for AVOs Private applications for an AVO | Court processes in relation to AVO applications Service of complaint and summons | Arriving, waiting and leaving Court - safety Court Assistance | Interpreters | What happens at Court What if the victim requests that proceedings be discontinued? AVOs made on charge and conviction | Serving AVOs: interim or final Chart 7 - AVOs and the civil legal process in Local Courts Local Court information and referral Local Courts provide information and referral. The following is Local Courts policy: Standard Information Sheets about apprehended violence processes and court procedures are available at all Courts and relevant Information Sheets are attached to all court processes issued Where available, Information Sheets are provided in a language appropriate for the client Court staff should consider and use any of the following resources, if available and practical to do so, to assist in providing information in an appropriate language or format: Standard information is available at all Courts about court facilities and court procedures on court days Court lists are displayed and they distinguish between domestic and personal violence cases A court officer, identified by a name badge, is available in the court foyer at least ˝ hour prior to court commencing to provide information on available services, legal representation and court processes and procedures (including likely waiting times at court) Information on domestic violence is available at every Court Registry after Business Hours. All Courts provide the following information on a recorded telephone message (available after business hours) and on a sign displayed at the front of the building: Community Language Assistance Scheme officer Aboriginal Client Service Specialists telephone interpreter service an interpreter attending court on behalf of the person court office hours and availability of Chamber Magistrate, location, hours and contact details for the nearest Court, location, hours and contact details for nearest police station; information that police may be able to assist and apply for Domestic AVOs and TIOs; 24 hour DoCS DV Line phone number 1800 656 463. Registrars will liaise with local Community Legal Centres, DVAS, WDVCAS, Legal Aid, Police DVLO to assist in providing representation for applicants. Back to top Privacy Local Court staff will respect the client’s right to privacy when conducting interviews and in relation to access to court papers. Interviews will be conducted in a private interview room, where one is available at the Court. Interviews will not be conducted at public office counters, except where no other alternative exists. Officers will comply with all relevant Departmental guidelines regarding access to court papers. The address of the protected person will not be stated in a complaint or AVO unless section 562AG of the Crimes Act has been complied with, ie, unless the protected person is of or above the age of 16 years and consents to the address being included in the complaint, or the complaint is made by a police officer the police officer is satisfied that the defendant knows the address the Court is satisfied that the defendant knows the address, or it is necessary to state the address in order to achieve compliance with the order and the personal safety of the protected person would not be seriously threatened, or damage would not be likely to be caused to any property of the protected person, by stating the address, or where the protected person is of or above the age of 16 years the protected person consents to the address being stated in the order. Back to top Police applying for AVOs Police officers MUST (mandatory) apply for an Apprehended Violence Order (s562C (3) Crimes Act 1900): When the officer suspects or believes that any of the following offences have recently been committed OR is being committed OR is imminent OR is likely to be committed against the person for whose protection the order would be made A domestic violence offence (s4(1) of the Crimes Act 1900 ), A stalking or intimidation offence, whether or not that stalking or intimidation occurred within the context of a domestic relationship (s562AB of the Crimes Act 1900), An offence of child abuse under s227 of the Children and Young Persons (Care and Protection) Act where the child is under the age of 16 years UNLESS: The officer believes that the person intends to make the complaint (this should be recorded in their notebook and the victim should sign the Police officer’s notebook), OR The officer believes that there is good reason not to. The police officer should record that reason in writing in their notebook and include on COPS. NB: These exceptions do not apply to children under 16 years of age. Police should not refer victims to a Chamber Magistrate for an AVO application. Children The police must make an application for an AVO for a child under 16 years of age when a domestic violence offence, or an offence of stalking, intimidation, or child or young person abuse has been committed, is imminent or is likely to be committed. There is no exception to this. A similar obligation is placed on police in respect of applying for a TIO for a child under 16 years. Only a police officer may apply for an AVO for a child under the age of 16 years if the child is the specific person in need of protection. For example, a young woman 15 years of age who is being stalked and harassed by her boyfriend must contact the police to apply for an AVO to provide her with the protection she needs. It is not possible for a person under the age of 16 years to make a private application for an AVO. Applying for an AVO for children under 16 years of age is different to including children on a mother's AVO (in this situation all are at risk of further violence, rather than a specific person being in need of protection). It may also be the case that the needs and circumstances of the children are different from their mother's, in this case the police must apply for the AVO for the children. Back to top Private applications for an AVO Any person aged at least 16 years of age can apply for an AVO through the authorised justice at any Local Court. No filing fee is payable on the making of a complaint. An authorised justice will be available at each Court during office hours to assist applicants in domestic violence applications to make complaints. The authorised justice cannot refuse to accept an application for an ADVO, although the authorised justice can refuse to accept an application where an APVO is sought (refer to Glossary). Initial contact with the Local Court The applicant at first contact with the Local Court will be given information on: The availability of the authorised justice The availability of immediate / urgent interviews If an appointment is made the time, date, place of appointment and availability of interpreters The option a support person may be brought to the interview The need to bring to the interview details of any Family Law Orders and applications The nearest child-care facilities - child care facilities are not generally available at court Assistance that may be obtained from local police in domestic violence applications Information, and/or referral to culturally appropriate community organisations, domestic violence support groups and refuges including: Any Court Assistance Schemes, particularly the Women's Domestic Violence Court Assistance Scheme Community Legal Centres, including Aboriginal Legal Resource Centre and the Domestic Violence Advocacy Service Crisis accommodation services (Women's Refuges, Department of Housing) Emergency assistance (Department of Community Services, Centrelink) Other community or government organisations (Women's Resource centre; Migrant Resource Centre) NSW Police and Police DVLO Avenues for advice on family law matters The maximum waiting time to make an appointment to see an authorised justice for domestic violence applications is 3 days. Back to top Meeting with the authorised justice When the applicant meets with the authorised justice the following occurs: The authorised justice will not ask applicants to complete questionnaires or instruction sheets prior to interview. The authorised justice will assess, in consultation with the applicant, the urgency of the situation, their perception of their safety and the immediacy of the danger and risk to the applicant and any children up until the proposed court date The authorised justice will explain court procedures and the availability of immediate interim orders to the applicant. Prior to allocating a first court date, the authorised justice will discuss with the applicant whether the applicant (and any children) has safe accommodation overnight. The authorised justice will provide information to the applicant on the assistance that may be obtained from police and circumstances and availability of telephone interim orders prior to the first court date. Authorised justices will ensure the applicant is provided with information on culturally appropriate community organisations who may be able to assist, including the phone number of any local refuge centre, the police station and the DoCS DV Line 1800 65 64 63. Authorised justices will discuss with applicants representation available at the court concerned, including: availability of Legal Aid Domestic Violence Advocacy Service the roles/responsibilities of police prosecutors Women's Domestic Violence Court Assistance Schemes any pro bono schemes operating Community Legal Centres (including specialist services for domestic violence/services to women.) Aboriginal Legal Service. Getting legal advice It is advisable for the woman to obtain legal representation when the matter goes to court. Solicitors from Community Legal Centres are often available free of charge through Court Assistance Schemes at various Local Courts. Alternatively, if she is eligible, the woman may apply for Legal Aid either through the Legal Aid Commission or a private solicitor who can make an application for a grant of Legal Aid. Back to top Court processes in relation to AVO applications Seeing an authorised justice Arrangements to see an authorised justice will preferably be by appointment Where an appointment system is not in use, the maximum waiting time to see an authorised justice will be 30 minutes. Where an authorised justice is not available arrangements will be made with the police to see the applicant. Applicants will only be referred to police where the applicant consents to being referred to the police, and the authorised justice (or staff member) contacts the police on behalf of the applicant to arrange for the referral. Where local police are not available - the applicant will be given standard information/options and an appointment will be made as soon as possible. Where a telephone enquiry (chamber) service operates, applicants in domestic violence cases will be offered an appointment to see an authorised justice on the same day or within 3 days of enquiry, at the court most accessible to applicant. Applications, summons, warrants, listings On request, appointments for domestic violence applications will be available on the same day. Courts will have in place procedures to identify and quickly deal with domestic violence applications. Priority will be given to domestic violence applicants seeking appointment. Where the applicant requests, appointments for domestic violence applications will be provided on the same day as requested (refer to standards and guidelines). In accordance with legislation, a warrant will be issued if it appears to the authorised justice that the personal safety of the person will be put at risk unless the defendant is arrested and brought before the Court. If an immediate interim order is sought by an applicant - the complaint will be placed immediately before a Court. If a summons is issued - the summons will be listed before a Court as soon as is practicable, within 2 weeks or the next available court sitting. AVO applications, and any related charges, will be listed on a day when Court Support is available for the applicant. Service of documents Service copies of documents will be forwarded / faxed to police on the day an application or order is made. Service copies of complaints and summons will be faxed to police where early service is required. Where defendant is not present at Court service copies of orders will be faxed to police station immediately for service. Police will be advised that faxed copies of affidavits of service will be accepted at Courts. The police domestic violence data bank will be notified on the day of Court the results of any orders made, varied, revoked or appealed against. Back to top Service of complaint and summons Whether the complaint is made through the police or through the authorised justice, a copy of the complaint and summons is sent to the police station nearest to the defendant's address to be served. The police officer who gives the documents to the defendant fills in a form called an "affidavit of service", which is proof that the defendant has been served. The legislation makes specific provision for the situation where a defendant can not be served with the complaint. If the Magistrate is satisfied, on the evidence, that the complaint cannot be served, an order for "substituted service" can be made, so that service can take place as the Magistrate directs. This may be, for instance, by post or by serving the complaint on a member of the defendant's family. It is unlikely that the Magistrate would make an order for substituted service on the defendant's first or even second failure to appear at Court. Warrants In certain circumstances, as an alternative to issuing a summons for the defendant to attend Court, the Chamber Magistrate may make an order (" a warrant") for the defendant to be arrested for the purpose of being brought before Court. A warrant must be issued by an authorised justice if it appears that the personal safety of the person will be put at risk unless the defendant is arrested and brought before a Court. Warrants are particularly suitable if the defendant's address is unknown or if he is avoiding service of a summons. Police roles in serving AVOs It is preferred that an AVO complaint/summons be served PERSONALLY on the defendant, The AVO complaint/summons is NEVER to be served on the complainant or victim seeking protection (including children) to give to the defendant, If police cannot meet the defendant, service on the defendant can be effected by leaving the summons with some other person to give to the defendant at their last or usual place of abode. If service is avoided, the Police Prosecutor may seek direction from the Court to serve the complaint/ summons in some other way. Serving the complaint/summons on the defendant The serving officer will: Explain to the defendant the meaning of the complaint/summons and ensure they have the Information Sheet ‘AVOs : Information for Defendants’ available from the Local Court Complete the affidavit of service before a justice Fax the sworn affidavit of service (together with a copy of the summons to which it relates) to the Court Post or deliver the original affidavit to the Court Maintain a copy of the complaint/summons and the affidavit of service for the DVLO Acquit the Summons Book. Back to top Arriving, waiting and leaving Court - safety Local Court policy includes: All Local Courts will ensure that victims are protected from unnecessary contact with the defendant and the defendant’s witnesses during the course of Court proceedings. Where practical, separate waiting areas will be provided for all victims of crime, including domestic violence victims Where practical, a separate waiting room or "support room" will be provided for domestic violence victims If necessary, separate "support rooms" may be provided away from the Court building Court registries will display a notice advising clients to inform Court staff if they hold any concerns about their safety Defendants and victims will be attended to separately at office counters Where practical, defendants and victims will be separated within the courtroom, including at the bar table or "rover microphone". Leaving the Court is a time of higher risk, especially outside the Court buildings and getting transport. Back to top Court Assistance Many Local Courts have a Women’s Domestic Violence Court Assistance Scheme operating. See Part 5 Appendix G for a full list. The role of the court support workers is: To improve the accessibility of the Local Court system for women seeking Apprehended Violence Orders To familiarise women and their children with the court process, layout and personnel, in order to increase their knowledge of the criminal justice system and its operations To arrange legal representation from appropriately trained, sympathetic legal practitioners/police prosecutors for women and their children seeking Apprehended Violence Orders To advocate on behalf of women and their children around or in connection with Local Court proceedings. To be available to follow up on the order and make appropriate referrals on other legal matters To assist women and their children seeking assistance with domestic violence matters to identify their needs and then advocate on their behalf in relation to those needs To provide referral and advocacy to other appropriate services in the area of income support, housing, order enforcement, counselling and other needs as required To provide Court assistance services in a manner that ensures access and equity principles are applied to meet the particular requirements of special need groups within local communities To assist in ensuring that the personal safety of women and children is of the highest priority at all times whilst in the precinct of the Court and its surrounds. Victims of domestic violence can contact Court Assistance Schemes prior to coming to Court. Back to top Interpreters Local Court staff will advise clients of their right to an interpreter and will provide information about and assistance to access other forms of language assistance. If an interpreter is requested for Court, an interpreter will be booked for the first Court date. Clients will be advised of their rights to an interpreter at the Chamber interview and at Court. Interpreters will be provided when requested by the client, their solicitor, advocate or support person. Police complainants will be asked by the authorised justice if an interpreter is requested for Court. Registry staff will not assess or determine language competency. The telephone interpreting and translating service (131 450) will be used for interviews where there is insufficient notice/time to book an interpreter, or for short contacts with the client. Same sex interpreters will be requested for all domestic violence interviews and court hearings and separate interpreters will be requested for protected persons and defendants. Back to top What happens at Court Courts authorised to make orders Regardless of the age of the victim, the Local Court deals with applications for AVOs against persons aged 18 years or over. If the defendant is less than 18 years of age, the matter should be dealt with by the Children's Court. Appeals from both the Local Court and the Children's Court are dealt with by the District Court. Mentions | Hearings | Children and Court Mentions When a matter is "mentioned" at Court, the Court is informed of what is happening with the application, for example, whether it is proceeding, or whether it is being settled. As opposed to a "hearing", the court is not in a position to hear the merits of the case in full. The first day on which the application is mentioned in Court is called the "first return date". Possible outcomes on mention day There are several possible outcomes of an AVO application on a mention day, including the following (assuming the protected person wishes to proceed): Defendant not served, not present If the defendant has not been served with the complaint and summons, the Court cannot grant a final AVO in his absence. The matter can be adjourned for a few weeks to allow the police more time to attempt service. If the defendant has been evading service, it is possible to ask for a warrant at this stage. The chances of success in getting a warrant are increased if a police statement is available outlining what efforts have been made to effect service. Alternatively, a request can be made for substituted service. Defendant served, not present If the defendant does not attend Court on the set date, the Court can hear the application ex parte (in his absence) provided the Court has proof of service. This proof is usually in the form of an affidavit of service sworn by the police officer who served the summons. In this circumstance, the protected person is generally required to give brief oral evidence to support the application and confirm that she still holds fears and seeks final orders against the defendant. Although the defendant had been served with the complaint and summons, the final AVO is not enforceable until it is served on the defendant. Defendant attends Court, seeks adjournment for further mention If the defendant attends Court, he may ask that the matter be adjourned for another mention so that he may get legal advice. This is generally allowed by the Court, as the defendant is entitled to independent legal advice. Defendant attends Court, consents to final AVO The defendant may attend Court and consent to the AVO being made. He can do this without admitting any of the facts alleged in the complaint: this does not affect the enforceability of the AVO. In this case, the woman should not be required to give evidence in Court. Back to top Defendant attends Court, opposes AVO If the defendant attends Court and does not consent to the AVO, the matter is set down for hearing. Depending on the volume of cases dealt with at the particular Court, the hearing date could be some months after the mention date. The Magistrate will ask each party to indicate how many witnesses will be called at the hearing, in order to estimate the time to be set aside. Protection for the duration of adjournments If the matter is adjourned to another date for mention or for hearing, protection is available for the duration of the adjournment by way of an interim AVO, bail conditions or undertakings. Protection for the duration of adjournments is a decision for the Magistrate and is not automatic. Interim AVO An interim AVO provides the best protection, since to knowingly breach an interim AVO is a criminal offence. A police officer can arrest, without warrant, any person reasonably believed to have breached an Interim AVO. Bail conditions Bail conditions may be imposed for the duration of the adjournment. These conditions may be in the same terms as conditions sought in an AVO. However, bail is not as effective as an interim AVO as it is not a crime to breach bail conditions. If the defendant breaches the bail conditions, however, he is answerable to the Court and can be arrested without warrant to attend Court where the question of bail would be reviewed. Undertakings The defendant may offer undertakings as an alternative to an interim AVO or bail conditions. An undertaking is a promise made by the defendant to the Court, and may be in the same terms as conditions in an AVO. However, undertakings are not legally enforceable and the police cannot act on a breach of undertakings (unless it also constitutes a crime, such as an assault). The woman should obtain legal advice before accepting an undertaking. Hearings At the hearing, the Magistrate hears the evidence of both parties and any witnesses they may have, and determines whether or not to grant the AVO, and if so, which orders should be made. Both complainants and defendants have the right to a "supportive person" near them in Court while they are giving evidence. A supportive person can be any person the complainant or defendant chooses, including a parent, friend, relative or support worker. The supportive person may also assist the complainant or defendant as an interpreter. The Magistrate may make an order for costs against the person who is unsuccessful in the hearing. Costs can only be awarded against the complainant if the Magistrate is satisfied that the complaint was frivolous or vexatious. Furthermore, costs cannot be awarded against the police in domestic violence matters unless the police have made a complaint in the knowledge that it was false or misleading. Explanation of AVO by court On granting an AVO, the Court must explain - in language that can be understood by both the defendant and the protected person - the effect of the AVO, the consequences of breaching the AVO and each party's rights regarding the AVO. The parties should also obtain a written explanation of these matters, although the Court's failure to comply with these requirements does not affect the validity of the AVO. Variations The woman may also ask the Court to vary the order at any time after it has been granted. In this way, the AVO can deal with a change of circumstances, such as changes to the woman's place of work or residence, or removal of non-contact orders where the parties have reconciled. Back to top Children and Court A hearing for an application for an AVO, or the variation or revocation of an existing AVO, for a child under the age of 16 years 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 a person directly interested in the proceedings, e.g. the defendant) to leave the court room when any witness is giving evidence. A child should not be required to give direct evidence at a hearing unless the Court is of the view that without their evidence insufficient evidence will be before the court. Children have a right to have a support person with them while giving evidence in proceedings relating to an AVO. Back to top What if the victim requests that proceedings be discontinued? The woman may ask that the application be withdrawn at any stage of the proceedings, whether the application was initiated privately or through the police. This may be as a result of undertakings being accepted on a final basis, or it may be because the woman states she is no longer fearful of the defendant. If a complaint is withdrawn, it is important to ascertain the reasons, as it may be due to some misunderstanding. For example, the woman may not know that she can seek an AVO and still live with the defendant. Wherever possible, the woman should attend Court to request that the complaint be withdrawn so as to guard against an application by the defendant that a costs order be made against her. Local Court staff will provide standard information to persons seeking to withdraw complaints: Staff will recommend to persons seeking to withdraw to seek further advice before making this decision. Where police have made the complaint the person will be advised to contact the police DVLO Standard information provide by Court staff will include information on other options available, variation of AVO; costs orders that may be made; possible requirement to attend Court; the necessity for the complainant to notify the defendant of their intention to withdraw; further applications for an AVO may be made after withdrawal See also Part 4 Section C Perpetrators - the criminal legal process. Back to top AVOs made on charge and conviction A Court can make an interim or final AVO even though there is no AVO complaint before it. If a person is charged with the offence of stalking or intimidation or a domestic violence offence, the Court should make an interim AVO against the defendant. If the defendant is subsequently found guilty of, or pleads guilty to, such an offence, the Court should make a final AVO. In either case, the Court need not make an AVO if satisfied that an AVO is not required, for example, if the woman objects to it or if there is already an AVO in place. The Court can also vary an existing AVO when the defendant is found guilty. Back to top Serving AVOs: interim or final If the defendant was not in Court when the order was made the police MUST serve interim or final AVOs PERSONALLY on the defendant, unless the Court authorises service in some other way. If police are unable to serve it personally they must return to the issuing Court and bring this to the attention of either the Court or the Clerk. The Police Prosecutor can ask the Court for an order authorising service in some other way. If the defendant was in Court when the order was made but the Clerk of the Court is unable to serve the copy personally on the defendant, the Clerk is to arrange for the order to be posted to the defendant (as the defendant was in court the order is enforceable even though it may not yet be served) Once an AVO has been served, the police complete a legible affidavit of service for the AVO The Event Reference number of the AVO is written on the affidavit In some circumstances the Court may purport to renew or continue a TIO, however, this is deemed to be an interim AVO. In this circumstance, further service of the order is not required. Once service has been completed, police have a number of responsibilities: Fax a copy of the order and the affidavit, indicating service, to the Domestic Violence Databank (whether or not the affidavit is sworn before a Justice of the Peace). Having sworn the affidavit of service, forward it with a copy of the order to the issuing Court. If the order served was an interim order, fax a sworn affidavit, along with a copy of the order, to the issuing Court and later forward the original. Acquit the Summons Book, AVO has been served and is therefore enforceable. Back to top The Children’s Courts The jurisdiction of the Children's Court | Procedures | Local Courts sitting as a Children's Court Children demonstrating violent behaviour | Children who are victims of violence Family Court orders and AV0s | AV0s taken out by parents against their children: referral to CJCs Breaches | Chart 8 - AVOs and the civil legal process in Children's Courts The jurisdiction of the Children's Court The Children's Court, with a few exceptions, has exclusive jurisdiction to deal with offences allegedly committed by a person who was over 10 and under 18 at the time of the offence and who was charged before turning 21 (Children (Criminal Proceedings) Act s.28). (This means that the Children's Court occasionally has jurisdiction to deal with an adult). Procedures The Children's Court has its own procedure, set out in the Children (Criminal Proceedings) Act, which differs in many respects from the procedure of the Local Court; although under section 27 the Justices Act 1902, the Criminal Procedure Act 1986 and other laws relating to Local Court procedure also apply in the Children's Court, with the Children (Criminal Proceedings) Act prevailing where there is inconsistency. In Court, a child who is not a defendant should not be expected to give direct evidence about domestic violence matters, unless that evidence is absolutely crucial having regard to the availability of other evidence. Children attending Court are entitled to have a support person of their choice with them, and there should be enough time for the child to contact this person. The Magistrate has the power to order anyone not connected with the proceedings to leave the Court room while the child witness is giving evidence. This should be requested if considered appropriate. Local Courts sitting as a Children's Court The jurisdiction of the Children's Court may be exercised by any Magistrate in any place specified by proclamation in the NSW Government Gazette. This means that Local Court Magistrates in country areas can sit as Children's Court with a simple statement to the Court that the Court is now sitting as a Children's Court. In fact, any Local Court can sit temporarily as a Children's Court to hear children's matters; but if there is a Children's Court that is reasonably accessible to your client, it is better to arrange for the matter to be heard there - seeking a short adjournment if necessary. Children demonstrating violent behaviour Domestic violence matters are listed in the Court that has jurisdiction relative to the age of the defendant, not that of the applicant. Where children are the alleged perpetrators of violence the Children's Court can make Apprehended Violence Orders (AV0s) restricting their actions. These can be either: ADVOs (Apprehended Domestic Violence Orders), where the parties have a domestic or family relationship APV0s (apprehended personal violence orders), where there is no such relationship. Back to top Children who are victims of violence If children are the victims of violence, the Court (this will be the Local Court where the perpetrator is an adult) can make orders for their protection. Children under 16 Children under 16 differ from the rest of the community in that the Court does not need to be satisfied that the child fears a violent act to issue an AVO. Under section 562B(2) of the Crimes Act 1900, an order can be made for the benefit of a child under 16 whether the child has expressed a fear of violence or not. The child's parent can take out an AVO and include the child in it; otherwise, only a police officer can apply for an AVO on behalf of a child under 16. The police must apply for such an order if they believe that an offence of domestic violence, or stalking and intimidation, has occurred, or is likely to occur, against the child. In particular, police who attend the complaint of an adult victim and discover that an offence of child abuse has been or is likely to be committed must apply for an AVO for the child (s.562H(2A)) unless the child is 16 or more and there is a good reason, which must be recorded in the officer's notebook, not to do so (s.562H(2B). It is good practice to consider the wishes of children (having regard to their age and development) regarding an application for an AVO on their behalf. If an AVO is gained for a child a careful explanation of the terms of the AVO in age-appropriate language is important. Children 16 and over Children aged 16 or 17 can take out an AVO on their own behalf through a Chamber Magistrate or the police. Family Court orders and AV0s When an AVO, or a variation of an AVO, is applied for by or on behalf of a child, the Court must be informed of any relevant family contact orders and pending Family Law proceedings of which the applicant is aware (s.562FA pf the Act), and must consider them in making its decision. AV0s taken out by parents against their children: referral to CJCs In the adult jurisdiction, domestic violence matters are not usually considered appropriate for referral to Community Justice Centres. However, the Children's Court often refers disputes between parents and children to Community Justice Centres for mediation before taking the drastic (and often inappropriate) step of making an AVO against the child. Breaches Under section 5621(2A) of the Crimes Act, an adult convicted of contravening an AVO by an act of violence must be sentenced to a term of imprisonment, unless the Court orders otherwise, in which case it must give reasons. This does not apply to children. Back to top After an AVO is made/not made After an AVO is made/not made there are a number of issues that may be considered. Appeals | Variations and revocation Enforcement | Taking children overseas Residency status for people applying for permanent residence Chart 9 - After an AVO is made/not made Appeals Types of appeal The types of appeal are: An application can be made to the Local Court for a review of a decision to make the AVO; An appeal can be made to the District Court against the AVO; and An application can also be made to the District Court for an AVO, where the Local or Children's Court has dismissed an application. It is important for the party to seek legal advice before deciding to apply for a review or an appeal. The Local Court review If an AVO has been made against a man and he was not present in court, he can apply to the Local Court for a review of the decision. The Local Court will review his case if: He did not know about the proceedings until they were completed; or He was stopped from taking action against the AVO by accident, illness, misadventure or other reason; or There are other good reasons why the application should be granted. The application must be made within 2 years of the AVO being made, and before the AVO expires. The District Court: appeal against an AVO A defendant can appeal to the District Court against an AVO being made against him. A protected person or a defendant or a police officer (if a police officer made the original application) can also appeal to the District Court against an order which changes or revokes an AVO. An appeal to the District Court must be filed within 28 days of the AVO being made or within 28 days of a Local Court Review being finalised. The defendant can apply to extend the 28 day limit, but the extension must be applied for within 3 months. Back to top Applying to the District Court for an AVO If an application for an AVO is dismissed by a Local or Children's Court, either the person seeking protection or a police officer can apply to the District Court for an AVO. The application (complaint) to the District Court must be made within 28 days after the Local or Children's Court dismissed the original application for the AVO. Applying The staff at the Local Court office can assist the victim to apply to the District Court. Contact the police, if the police made the original application. Going to court The victim will need to go to the District Court so that a judge can decide whether to make an AVO. The defendant will receive a copy of the complaint and a summons to attend the District Court. Representation If the victim made the application, it is recommended that she arrange legal representation through Legal Aid or by hiring a solicitor. If the police made the application, the police will arrange for the victim to be represented by a solicitor from the Office of the Director of Public Prosecutions. Permission to appeal to the District Court In some cases the defendant will have to apply to the Court for permission (called leave) to appeal against the AVO. These cases are: Where the AVO was made in the defendant's absence; or Where the AVO was made with the defendant's consent; or Where the defendant has not made an application for a review to the Local Court. The District Court will generally refuse permission if an application for a review to the Local Court could have been made and was not made. Where the AVO was made in the defendant’s absence, the defendant should apply for a review to the Local Court before considering whether to appeal to the District Court. What happens during the appeal? Appeals to the District Court involve re-hearing the transcript of the evidence heard in the Local Court. The defendant will not be allowed to call witnesses or give evidence that was not given in the Local Court unless the District Court is satisfied that there are special or substantial reasons. The defendant is entitled to a free copy of the transcript. AVO still in place The filing of an appeal against an AVO does not stay (suspend) the AVO. To have an AVO suspended, the man must apply to the original Court to stay the operation of the AVO. This will only be done where the Court is satisfied “it is safe to do so, having regard to the need to ensure the safety of the protected person and any other person”. Applying for a review or appeal Application and appeal forms may be obtained from and filed at the nearest Local Court. Application fees apply. Fees may be waived in some circumstances. Ask the Clerk of the Court for more details. Back to top Variation and revocation of AVOs An application to vary or revoke an AVO or interim AVO can be made by either: The protected person (provided she is at least 16 years of age) or - The police (if the original AVO was initiated by the police)or - The defendant. An AVO can be varied by extending or reducing the period of operation, or by amending, adding or deleting certain conditions. In the case of a variation, the application must set out the nature of the variation sought. Notice must be given to the other party before an AVO can be varied or revoked. However, where the variation sought is an extension and the defendant has not been served with notice of the victim's request for an extension, the victim may now apply to have the AVO extended for 21 day periods until the defendant has been served. She must make the first application for extension at least 21 days before the AVO expires. The Court process for variation and revocation applications is similar to that for AVO complaints. An application to vary or revoke an AVO can be refused by the Court if there has been no change in circumstances since the original AVO was made and the application is in the nature of an appeal against the AVO being granted. Back to top Enforcement of AVOs It is a crime to knowingly breach an AVO or interim AVO. An AVO is enforceable once it is served on the defendant, or if the defendant was in Court when it was made. A police officer may arrest without warrant any person who is reasonably believed to have breached an AVO. To do so, the police officer needs to gather enough evidence to prove beyond reasonable doubt that the Order was breached. The police officer must then consider whether to initiate criminal proceedings. If the police officer decides not to initiate criminal proceedings, a written record must be made of the reasons for not doing so. As a criminal matter, proceedings for the breach are run by the prosecutor so the victim does not need a solicitor. If the defendant pleads not guilty to the charge, the victim will be required to give evidence in Court at the hearing, along with any other witnesses. If convicted, the defendant is subject to a maximum fine of 50 penalty units (currently $5,500) and/or two years imprisonment. Police communicating what constitutes a breach It is important that police officers communicate what constitutes a breach of an AVO to both the victim and the offender. This is especially important if the victim or offender is a child. Officers need to highlight that there are many behaviours which can constitute a breach. For example: Telephoning the victim under the guise of arranging child contact but instead harassing or abusing her (it is advisable to suggest to the victim that an answering machine be purchased to monitor calls), Sending flowers, cards, or notes with messages of endearment. For the victim these types of behaviours may send a chilling message that the offender can still threaten her and impact on her/his emotions and may be a breach if the conditions of the AVO state that the defendant is not to contact the complainant in any way The offender having his friends contact her to pass on messages. This can be harassment. These are but a few examples of the more subtle forms of harassment and intimidation. Officers need to be alerted to the fact that some offenders believe they can do whatever they like knowing the difficulty in proving these types of breaches. Back to top Recording reports of breaches on COPS Police must record all reports of breaches on COPS. Where an officer receives a report of a breach and they decide not to initiate criminal proceedings in relation to that matter, they must record their reasons for that decision in their police notebook and the COPS narrative, as required by s562I (6)of the Crimes Act 1900. This is important for information and intelligence gathering purposes. A number of calls over a period of time may indicate an escalation of offender behaviour that may place the victim at high risk. NSW Police has a responsibility to monitor offender behaviour and victim safety. Back to top When a breach is reported The role of the officer is to thoroughly investigate any reported breaches of AVOs. Where an offence has been committed and this offence also constitutes a breach of any conditions as set down in the AVO, the Officer is to charge the accused with breaching the order as well as any substantive offences (eg. assault, malicious damage to property). A bail determination is to be made in respect of both breaching the order and any other criminal offence. Breaching an AVO constitutes a criminal offence that must be proved beyond reasonable doubt. Breaching an AVO is subject to the statutory limit of commencement of proceedings within 6 months. If the police fail to investigate a breach this will amount to a neglect of duty and disciplinary action will be warranted. If notified that there are Family Law Contact Orders the police officer MUST determine the nature of the contact order. If the contact order is inconsistent with the AVO the contact order will prevail, but only to the extent of the inconsistency. It is important for police officers to note that where a Family Law Contact Order provides for contact, this does not allow for abuse and harassment. Any behaviour of this nature constitutes a breach and should be dealt with accordingly. If a police officer has good reason to believe that a breach occurred, or receives a report of a breach and does not initiate or proceed with criminal proceedings, the officer must record the reasons for this decision in their notebook and on COPS, as required by s562I (6) of the Crimes Act 1900. NB: If the allegation of breaching the AVO is made and the order expires during the police investigation, or since the allegation, the breach is still enforceable as the breach occurred at a time when the AVO was valid. Back to top Taking the children overseas Generally, the consent of both parents is required before a child can be taken overseas. If a woman is concerned that a child may be taken overseas without her consent, she should seek legal advice. Other steps that can be taken are: If the children have passports, she should keep these safe. If the father already has the children's passports, a Court order can be made requiring him to surrender his and the children's passports. An order can also be made preventing the father from taking the children out of the country She can get a Travel Document Stop Request Form from any official Post Office and fax it to the Passport Office. Passport Office will need to see parent ID, birth certificates, family court orders etc. She can contact the Passport Office for full details on 131232 For further information please see DoCS and the Hague Convention on the Civil Aspects of Child Abduction, Part 2, Agency roles, N. Department of Community Services. Back to top Immigrant women and eligibility for permanent residence after breakdown of relationship The Domestic Violence Provision of Australia’s Migration Program allows people applying for permanent residence in Australia on the basis of a spouse (including a de facto (common law) spouse) or interdependent relationship to remain eligible for permanent residence after the breakdown of their relationship if they, or a member of their family unit, have experienced domestic violence. The Provision was introduced in 1991 in response to community concerns that some spouses and partners might feel compelled to remain in abusive relationships to obtain permanent residence, rather than end the relationship and be forced to leave Australia. Background Most applicants claiming domestic violence apply for permanent residence in the Partner component of the Migration Program. (See Fact Sheet 30 Family Stream Migration - Partners for more details at: www.immi.gov.au/facts/30partners.htm). Spouses and partners of Australian citizens, Australian permanent residents or eligible New Zealand citizens who apply to live permanently in Australia undergo a two-stage process to finalise their permanent residence applications. At the first stage, successful applicants are granted a two-year temporary residence visa, followed by permanent residence at the second stage if the relationship is genuine and continuing. If the relationship is found not to be genuine, or has broken down, in normal circumstances a permanent residence visa will not be granted, and the applicant must leave Australia. However, if the relationship has broken down, and it is proved that domestic violence has occurred, the Provision enables applicants to stay permanently. Back to top Eligibility The visa subclasses covered under the Domestic Violence Provision include: *Spouse (100); *Interdependency (110); Spouse (801 and 820); Interdependency (814 and 826); **Prospective marriage spouse (831) - after arrival and marriage in Australia; Onshore business skills (840 to 846); Resolution of Status (851); Onshore skills (805, 855 to 858). *for applications lodged on or after 1 November 1996 ** for applications not decided before 1 November 1996 Fiancé(e)s who hold subclass 300 (Prospective Marriage) visas and have become victims of domestic violence after entering Australia can only use the Provision if they have already married their sponsor. This applies even if they have not lodged their application for a Spouse visa. Back to top Forms of evidence Under the Domestic Violence Provision, an applicant may be granted permanent residence if the acceptable form of evidence is provided as proof that domestic violence has occurred. The acceptable forms of evidence that may be provided include: Certain judicial forms of evidence – for example, a Family Law Act injunction, a Court order or a conviction or finding of guilt), a final AVO; Joint undertakings (recognised by the Court) between the applicant and their partner; Statutory declarations (one from the applicant and two from 'competent persons' from different professional groups) stating that, in their professional opinion, the applicant had suffered from domestic violence; A record of assault from police is also acceptable as a substitute for one statutory declaration. These forms of evidence are prescribed in the Migration Regulations. Competent persons 'Competent Persons' are certain professional people who are authorised to provide statutory declarations as forms of evidence of domestic violence. The professions are prescribed in the Migration Regulations and include medical practitioners (eg, doctors and psychiatrists), registered nurses, psychologists, some social workers, court counsellors and managers of women's refuges or specialist domestic violence crises and counselling services. In addition, State and Territory government welfare or child protection officials are regarded as 'competent persons' for the purposes of establishing that violence against children has occurred. Back to top Definition of domestic violence For the purposes of the Migration Regulations, domestic violence means: "violence against the alleged victim or his or her property that causes the alleged victim, or a member of the alleged victim's family, to fear for, or to be apprehensive about, the alleged victim's personal well-being or safety". In basic terms, it is an abuse of power by one person over another, whether actual or threatened violence. It usually occurs at home and can include physical (such as hitting, punching, biting), sexual or psychological (including emotional and verbal) abuse. Domestic Violence Contact Officers The Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) has located Domestic Violence Contact Officers in each State and Territory. These are immigration officers who are trained to assist people applying for permanent residence on the grounds of domestic violence. They provide information on the Provision as well as details of organisations that offer a range of welfare and legal services. Getting advice The Immigration Advice and Rights Service is a Community Legal Centre that gives independent legal advice. Migrant Resource Centres can also provide independent advice, information and referral. Back to top | Previous Page | Back to HOME | Top of Page | most recently updated 19 November 2003