5.1 For some time, concern has been expressed over the growth in the number of APVO applications and the impact this has on the effectiveness of AVOs overall.1 It has been alleged that APVOs are being sought regarding “trivial” issues, such as disputes over building being conducted in a neighbour’s backyard,2 or even for vindictive purposes such as blackmail.3 It has been suggested that the increasing popularity of APVOs as a way of dealing with friction between neighbours and colleagues has done a disservice to people who genuinely fear personal violence or abuse, and taken AVOs too far away from their original purpose of protecting against domestic violence.4 This view is supported by the majority of Magistrates surveyed in relation to AVO issues in 1999, where 71% of Magistrates surveyed considered APVOs to be an ineffective way of dealing with personal violence or harassment.5 One of the major reasons given for this perception was the belief that APVOs were increasingly being used unmeritoriously in response to “trivial” matters.6
5.2 The Discussion Paper produced by the Criminal Law Review Division of the Attorney General’s Department in 1999 (“the CLRD Discussion Paper’) argued that there is “little empirical evidence either supporting or refuting the claim that APVOs are routinely being abused”.7 In Chapter 3, the Commission noted the views expressed in submissions and consultations concerning the abuse of the APVO provisions. The CLRD Discussion Paper also noted that even if APVOs were not being sought vexatiously, it could be argued that the Local Court is not the right forum for dealing with such disputes, given the court’s focus on adversarial litigation and the fact that the parties need to continue to live or work in close proximity.8 This argument is supported by the Magistrates Survey, in which 52% of Magistrates surveyed considered that APVOs would be better dealt with in other forums, such as Community Justice Centres (“CJCs”) or other mediation or counselling services.9
5.3 To this end, the Crimes Amendment (Apprehended Violence) Act 1999 (NSW) provided for an authorised justice to have a discretion to refuse to issue process in APVO applications, which does not exist in relation to ADVOs.10 In DP 45, the Commission asked whether those provisions were being used effectively, and whether the role of mediation in APVO disputes should be enhanced. This Chapter examines these issues and recommends changes to Part 15A to enhance the effectiveness of the APVO provisions.
DISCRETION TO REFUSE TO ISSUE PROCESS
Current provisions
5.4 Where an APVO complaint is made by an applicant in person, an authorised justice (generally a Chamber Magistrate) has a discretion to refuse to issue process. An authorised justice exercises that discretion by declining to issue either a summons or a warrant under s 562AJ.11 That discretion does not apply where the complaint is made by a police officer.12 An authorised justice may refuse to issue process if satisfied that the APVO complaint is “frivolous, vexatious, without substance or has no reasonable prospect of success”.13
5.5 When introducing the amendment giving effect to this discretion, the then Attorney General, the Hon JW Shaw, QC, MLC, stated that the intention of the provision was to ensure that “genuine applicants for APVOs continue to have access to the courts for protection”.14 Accordingly, there is a presumption in favour of issuing process where the complaint discloses allegations of:
(a) a personal violence offence; or
(b) stalking or intimidation with intent to cause fear of physical or mental harm; or
(c) harassment relating to the complainant’s race, religion, homosexuality, transgender status, HIV/AIDS or other disability.15
5.6 In determining whether or not to exercise the discretion, an authorised justice must take the following matters into account:
(a) the nature of the allegations;
(b) whether the matter is amenable to mediation or other alternative dispute resolution;
(c) whether the parties have previously attempted to resolve the matter by mediation or other means;
(d) the availability and accessibility of mediation or other alternative dispute resolution services;
(e) the willingness and capacity of each party to resolve the matter otherwise than through an application for an apprehended personal violence order;
(f) the relative bargaining powers of the parties;
(g) whether the complaint is in the nature of a cross application;
(h) any other matters that the authorised justice considers relevant.16
5.7 Where an authorised justice declines to issue a summons against a defendant, the complaint is listed before a Magistrate who may formally dismiss the complaint or, if it appears that there are reasonable grounds, order the issue of a summons.17
Views in submissions
5.8 Some submissions expressed the view that the current provisions were being used effectively and were adequate to deter unmeritorious complaints.18 The contrary view was also expressed, with anecdotal information suggesting that, while it varies between Chamber Magistrates, process is generally still being issued in circumstances where it may not be appropriate.19 It was considered that s 562AK in its present form does not adequately prevent unmeritorious cases from coming before the court.20 Many have not noticed a difference in the last two years, with some expressing the view that the number of trivial APVOs appears to be increasing.21 It was suggested that, since the courts are reluctant to use their implied powers to restrain abuse of process, there should be a legislative basis to stay or strike out such proceedings.22
5.9 Others considered that it was too soon to tell, given that the provision has only been in operation for three years, and there is insufficient data on which to base an assessment.23 Another submission expressed the view that it was difficult to assess whether the discretion to refuse to issue process was being used effectively, but noted that there still appear to be too many frivolous APVOs.24
5.10 The Chief Magistrate commented that there is in practice a presumption against authorised justices exercising their discretion to refuse to issue process. He considered this to be understandable, given the protective objects of the legislation.25
5.11 Some submissions noted the need to recognise that, despite the anecdotes, not all APVOs are frivolous, and may involve serious issues of violence and intimidation.26 Most submissions that discussed this issue expressed the view that the law needs to continue to provide for APVOs in such cases, but should also encourage diverting cases from court where other means of dispute resolution, such as mediation, would be appropriate.27 Identifying and implementing alternative methods of resolving problems that form the basis of some AVO applications should be encouraged.28 It was also suggested that there should be legislative guidelines as to how the discretion to refer to mediation should be exercised,29 and a need for more judicial training and education.30 Another submission expressed the view that s 562AK should give more guidance on what happens when an authorised justice refuses to issue process, and the matter proceeds to a Magistrate who also refuses process.31
5.12 It was also suggested that the discretion should apply to ADVOs as well,32 with scope for the decision to refuse to issue process to be reviewed within seven days.33
View of Local Courts
5.13 Local Courts have advised the Commission that, since the commencement of the new provisions in April 2000 until September 2002, authorised justices have issued process in 34,287 APVO matters, and refused to issue a summons in 419 matters.34
5.14 Local Courts have suggested the low rate of refusal to issue process could be attributable to a number of factors. First, a Chamber Magistrate may suggest alternatives to proceeding with an APVO, and so the matter may be diverted from the court before process is formally refused. Secondly, Local Courts noted the limited basis offered under s 562AK on which the discretion to issue process may be based. For example, an authorised justice may only refuse if satisfied that the complaint is frivolous, vexatious, without substance or has no reasonable prospect of success. It is often very difficult to investigate these issues given the time constraints and the lack of substantive information or independent or corroborative evidence. Also, in some cases where the application is not frivolous, vexatious or without substance, mediation may still be a more appropriate way of resolving the matter than an APVO.35 Local Courts suggest that s 562AK(3) be amended to include an additional ground of refusal: an authorised justice may refuse to issue process if satisfied that the matter may more appropriately be dealt with by mediation.36 This would enable the more trivial APVOs to be diverted from the courts earlier.37
5.15 Further, the circumstances which give rise to the presumption against exercising the discretion contained in s 562AK(4) are very broad, covering the major reasons why APVOs are brought in the first place. Local Courts suggested that s 562AK(4) be amended to provide that the presumption against exercising the discretion to refuse to issue process with regard to harassment only applies where there is a course of continuing conduct, that is, not on the basis of one comment by a neighbour. They also consider that the reference to complaints disclosing evidence of a stalking or intimidation offence38 should be removed from s 562AK(4), as it causes difficulties for the Chamber Magistrate in ascertaining whether or not the defendant “intended” to cause the applicant to fear physical or mental harm.39
The Commission’s view
5.16 In 2002, process was issued in relation to 13,640 APVO applications,40 and refused in 174 matters.41 As the comments made in submissions show, it is hard to draw definite conclusions from these statistics. While many, and indeed most, of those applications would have been justified, it would be fair to say that at least some matters may have been either at the trivial end of the spectrum, or may have been better dealt with through other means of dispute resolution.
5.17 Diverting such cases away from the court system is beneficial for several reasons. First, dealing with trivial or frivolous APVO applications places considerable strain on court time and resources. Secondly, this runs counter to the overall effectiveness of Part 15A in terms of achieving its primary policy objective of stopping or preventing serious violence, abuse or intimidation. Finally, and most importantly, granting an APVO may not be the best way of getting to the heart of and resolving these disputes, particularly where the parties need to live or work in close proximity.
5.18 The Commission is of the view that s 562AK could be amended in a number of respects to clarify when the discretion to refuse to issue process in APVO matters should be exercised.
Complaints made by police officers
5.19 The discretion to refuse to issue process does not apply where the complaint is made by a police officer. This is presumably because of the assumption that the matter must be fairly serious to warrant police involvement. However, the necessity of that provision is unclear given that s 562AK(4) provides that the discretion to refuse to issue process is presumed not to apply in relation to complaints alleging a personal violence offence, a stalking and intimidation offence or certain kinds of harassment. Those categories are fairly broad, and it is difficult to imagine situations outside of those grounds where police would become involved in an APVO dispute, so process would be issued in these cases anyway. Even if there were cases outside the grounds specified in s 562AK(4), then as long as the complaint was not made frivolously or vexatiously, or does not lack substance or any reasonable prospect of success, the discretion to refuse to issue process would not apply in accordance with s 562AK(3).
5.20 At paragraph 5.23-5.24 below, the Commission recommends that a further ground should be added to s 562AK(3), namely that an authorised justice should have a discretion not to issue process if it appears that the matter would be better dealt with by mediation than through the granting of an APVO. The Commission is of the view that this provision should, prima facie, apply equally to complaints brought by police and by private citizens. As noted above, however, it is likely in practice that police would only become involved in APVOs of a serious nature that would not be suitable for mediation.
5.21 The Commission is also concerned that drawing a distinction between police and private applicant complaints, implies that complaints brought privately are necessarily of a less serious nature. That is not always the case. Indeed, concern over the lack of police involvement in serious instances of sexual assault and stalking in non-domestic relationships was conveyed to the Commission in submissions and during consultations.42 Considering that only a small percentage of APVO complaints are initiated by police,43 there is a likelihood that a number of private APVO complaints are made on the basis of very serious allegations.
5.22 Consequently, the Commission is of the view that the reference to police complaints in s 562AK(1) should be removed. The nature of the subject matter of the complaint should determine the appropriate legal response, not whether or not the complainant is a police officer. Instead, the Commission recommends that the fact that a complaint is brought by a police officer should be included in s 562AK(5) as a factor an authorised justice must consider in determining whether or not to exercise the discretion to refuse to issue process.
Circumstances where the discretion may be exercised
5.23 The Commission is persuaded by the argument that another circumstance where an authorised justice may exercise the discretion to refuse to issue process should be where a matter would be more appropriately dealt with by mediation.44 It is conceivable that an APVO application may be neither frivolous, vexatious, or without substance or reasonable prospect of success, yet an APVO may not be the best way to proceed. However, there is currently no discretion to refuse to issue process in these circumstances.
5.24 Accordingly, the Commission recommends that s 562AK(3) be amended to provide that an authorised justice may exercise the discretion to refuse to issue process if satisfied that the complaint is:
1. frivolous; or
2. vexatious; or
3. without substance; or
4. has no reasonable prospect of success; or
5. where the matters referred to in the complaint may more appropriately be dealt with by mediation or other alternative dispute resolution.
RECOMMENDATION 15
Section 562AK(1) should be amended to permit an authorised justice to refuse to issue process in relation to complaints made by police officers. Whether or not the complaint was made by a police officer should be listed in s 562AK(5) as one of the factors an authorised justice must consider when determining if the discretion to refuse to issue process should be exercised.
RECOMMENDATION 16
Section 562AK(3) should be amended to provide that an authorised justice may exercise the discretion to refuse to issue process if satisfied that the complaint is:
- frivolous; or
- vexatious; or
- without substance; or
- has no reasonable prospect of success; or
- where the matters referred to in the complaint may more appropriately be dealt with by mediation or other form of alternative dispute resolution.
THE ROLE OF MEDIATION IN APVO MATTERS
5.25 The role of mediation is linked with the question of refusing to issue process in APVO matters, but is also a broader issue. In some cases, mediation may be a more suitable option than an APVO, and so it may be preferable that process does not issue. In other cases, however, mediation may be appropriate in addition to an APVO, following an application being made or an order being granted. Questions arise concerning the types of matters that would be suitable for mediation, and how authorised justices are to determine such matters; whether or not referral to mediation should be underpinned by legislation, and if so how; should referral be compulsory even if the parties do not agree to the matter being mediated; and at what stage of the APVO process should mediation occur. The views canvassed in submissions and consultations on these questions are discussed below.
Views in submissions
5.26 Most submissions expressed the view that mediation should play a greater role in the resolution of APVO disputes.45 It was considered that mediation should be attempted at any stage during proceedings: police should receive training in alternative dispute resolution options rather than simply referring people to Chamber Magistrates to apply for APVOs,46 and the availability of mediation should not be restricted after legal proceedings have commenced.47 The Commission understands that a number of initiatives have already been piloted in an attempt to divert neighbourhood disputes away from the court system.48
5.27 Some submissions stated the view that mediation could be particularly useful where a person with an intellectual disability was involved as one of the parties in an APVO dispute, provided there were thoughtful guidelines in place.49 Mediation would also be beneficial in suitable cases where children and young people were applicants or defendants.50
5.28 A few submissions raised the idea that referral to mediation should also be available in domestic violence disputes where the court considered that it would be beneficial to both parties and there is no threat to the applicant’s safety,51 although one of those submissions suggested that there should be a presumption against mediation in domestic violence.52 However, others were against such an idea. The central theme of mediation and other forms of alternative dispute resolution is that of equality between disputants. Fear and the exploitation of inequality of power are at the heart of most domestic violence complaints. While there may be aspects of the relationship breakdown which are suitable for mediation, such as residence, contact and property matters, attempts to mediate violence should never be made.53
Compulsory mediation for APVOs?
5.29 A significant number of submissions were of the view that mediation should be compulsory in the determination of APVO disputes.54 It was considered that this would save court time and deter frivolous and vexatious applications.55 However, all agreed that mediation should never be attempted where there has been physical violence or abuse.
5.30 Others strongly expressed the view that, while mediation may be useful, it should not be compulsory.56 Mediation is only truly effective when both parties are amenable to it.57 Mediation can be useful but the “wholesale imposition” of a general requirement for mediation would be counterproductive, as in some cases it would simply put the applicant, mediator and others in real or greater danger.58 While mediation focused on the root causes of violence and could help to eliminate it,59 it should never be attempted in situations involving violence, fear or inequality.60
5.31 It was also asserted that the introduction of compulsory mediation would result in another barrier for people with a disability from a non-English speaking background in obtaining APVOs. Adequate resources, including access to interpreters, would need to be guaranteed, as there is currently a lack of culturally competent mediation services available, together with a lack of knowledge among people from culturally diverse backgrounds with a disability about the processes and purposes of mediation.61 The view was that more support services are needed rather than compulsory mediation.62
A legislative basis for mediation?
5.32 Submissions that expressed support for an enhanced role for mediation in APVO disputes also considered that it should be underpinned by legislation, and that more formal structure and recognition should be provided.63 As discussed earlier at paragraph 5.6, s 562AK(5) currently requires an authorised justice to consider whether a matter is suitable for mediation in deciding whether or not to refuse to issue process, but does not require APVO matters to be referred to mediation.64 It was suggested that Part 15A should be amended to provide that all APVO matters must be referred to mediation unless a personal violence offence has occurred or is likely to occur.65 This could obviate the need for imposing a filing fee as a means of deterring trivial APVO applications, and protect people at genuine risk.66 It was also suggested that the legislation could give courts the power to direct parties to mediation in appropriate cases, backed up by interim orders where necessary, with the unreasonable failure to participate in mediation being a factor to consider when awarding costs.67
5.33 The Chief Magistrate also favoured amending the legislation to enable the court to direct parties to CJCs or other mediation services, in appropriate cases, even where they do not agree.68
5.34 It was also suggested that s 562D should be amended to provide that an AVO restricting approaches by the defendant to the applicant does not preclude the attendance of the defendant at an agreed formal mediation session between the parties.69
5.35 It was noted that closer, more formalised links between the court process and mediation already exist in areas like children’s care and protection and residential tenancies.70 While there would be resource implications, the view was expressed that this would be off-set by the savings involved in getting these matters out of the court system,71 resulting in increased efficiency, reduced financial and other costs (eg stress to applicants and defendants), and would better meet people’s needs.72
View of the CJC
5.36 CJCs have advised the Commission that they currently mediate in about 8% of applications for APVOs.73 In the period 1 July 2002-31 December 2002, 486 CJC files were opened where an APVO had been sought by one or more parties. A total of 625 APVOs were involved.74 Approximately 80% of matters mediated result in an agreement between the parties.
5.37 CJC reports that the APVO matters referred to it relate in the main to neighbourhood disputes. A smaller number relate to work relationships, and, landlord and tenants conflicts. Disputes between people who know each other are often not just a legal issue. They may involve other members of the family or immediate community in some way.
5.38 The CJC submission noted that while the presenting problem with an APVO dispute may be perceived or actual violence, generally the parties have an ongoing relationship be that as neighbours, workers, friends, tenants or members of an incorporated association. CJCs allow the parties to explore the issues and tensions in the relationship that gave rise to the APVO. These issues may involve a long history of dispute between the parties in relation to matters that have never been properly communicated or resolved. For example, the barking dog, loud noise, parked cars, overgrowing trees, boundary fences, and so on. Alternatively, the dispute may be at a deeper level associated with prejudices between the parties, racial or ethnic differences or lifestyle conflicts.
5.39 There is a significant benefit for the parties in having the matter referred to mediation at the earliest opportunity as disputes tend to become more intractable as court attendance and further incidents occur between the parties. CJCs have found that APVOs can and are successfully mediated, where the parties have the capacity and the willingness to want to resolve the dispute.
5.40 CJC recognises that many matters suitable for mediation do not proceed to mediation. This may be influenced by the concerns of the parties about the effectiveness of the mediation process in assisting in their particular circumstances. It may also be due to Chamber Magistrates assessing a matter as not suitable for mediation when CJCs may assess it as being suitable. CJCs are of the view that suitable training can assist Chamber Magistrates and Magistrates to identify those matters obviously not suitable for mediation and that CJCs have a vital role in assessing those matters which are not so clear cut.
5.41 Some Chamber Magistrates have reported to CJCs that they believe that they have no legal framework in which to refer matters to mediation. In those circumstances, process will nearly always be issued.
5.42 Strengthening the relationship between APVOs and mediation would encourage co-operative assessment of matters between Local Courts and CJCs. To this end, CJCs make the following suggestions:
1. That APVO legislation provide that applications may be referred for mediation:
- prior to the application being made to the court;
- at the time the application is made;
- at the time of the call-over; and
- at the time of the hearing.
2. That an authorised justice have the discretion to refuse to issue process for an APVO so that the matter may be referred for mediation in the first instance.
3. That the authorised justice refer the matter to mediation unless there is good reason not to, such as a history of actual physical violence, or a previous failed attempt at mediation.
4. That a clause be included in the standard APVO stating that the parties may not approach each other except for the purposes of mediation.
5. That Local Courts advise CJCs electronically that an application for an APVO has been made, and the names and addresses of the parties involved, so that they may be contacted by CJC to offer mediation.
6. CJCs may assess a dispute as not suitable for mediation.
7. That information sheets on APVO processes and the role of CJCs in that process, be provided to applicants and defendants by the Court at appropriate stages.
5.43 CJC estimates that, should these recommendations be implemented, the resource implications would amount to an increase in total mediation costs of approximately $425,000 per annum.75
The Commission’s view
5.44 The Commission considers the issue of mediation to be one of particular importance in APVO disputes. This view is held not only in terms of limiting the opportunity for the system to be abused, but because, in many cases, mediation may be a more appropriate solution than, or a valuable complement to, an APVO. Many of the issues raised in submissions may be dealt with through continued improvements in judicial training and education and better administrative procedures. To the extent that those issues involve more effective implementation, they are discussed in Chapter 3.
5.45 The Commission is also of the view that mediation in APVO matters should have a legislative basis. Accordingly, the Commission recommends that a new provision should be included in Part 15A specifically empowering authorised justices to refer suitable APVO matters to mediation. That provision should state that matters may be referred at any time during the APVO process, and should clearly state the types of matters in which mediation should not be attempted. The major principles that should guide the legislative power to refer APVO disputes to mediation are discussed below.
Referrals to mediation should be able to be made at any time in the AVO process
5.46 In some circumstances, it may be apparent to an authorised justice at the outset that mediation may be a more suitable alternative to an APVO. For example, in a neighbourhood or work dispute where there is a need to preserve a harmonious relationship, there are identifiable issues capable of resolution, and there is no immediate threat of violence. In such a case, an authorised justice may choose to use the discretion to refuse to issue process to initiate an APVO on the ground that the matter is more suitable for mediation, in conjunction with the power to refer the matter to mediation recommended here. Where this occurs, the authorised justice may inform the parties that a summons may issue if mediation does not resolve the dispute. Such a provision would enable more APVO matters to be diverted before proceeding to a Magistrate for determination.
5.47 In other cases, the issue may not be so clear cut. An authorised justice may consider it appropriate to issue process in addition to referring a matter to mediation. Furthermore, issues amenable to mediation may not be apparent at the start of proceedings, but may emerge later during the course of the hearing to determine if an interim or final APVO should be granted. Consequently, the Commission is of the view that the power to refer a matter to mediation should be available at any stage of proceedings, before or after an APVO is granted. It should also be available in lieu of, or in addition to an APVO being granted. For while some issues involved in a dispute may be responsive to mediation, there may also be underlying threats of violence which should be responded to by way of an APVO. Mediation cannot be used as a substitute for protection.
5.48 At paragraph 5.19-5.22, the Commission recommends that a distinction should not be drawn between police and private complainants in terms of the discretion to refuse to issue process. The Commission is of the view that the same principle should apply to referring matters to mediation. While it may be safe to assume that the circumstances where police make a complaint for an APVO on an applicant’s behalf would most likely be too serious to refer to mediation, the Commission is of the view that that decision should be based on the nature of the subject matter rather than the identity of the complainant.
5.49 While mediation would be most effective where both the parties were amenable and consented to the mediation, the Commission is of the view that the legislation should enable the court to refer suitable APVO matters to mediation even where one or both of the parties do not agree to the matter being mediated. As CJCs noted, reluctance to accept mediation may be due to scepticism concerning its effectiveness, which may be overcome once the mediation process is underway. Should the attempt at mediation fail, the parties would still have the opportunity to proceed with the APVO. Part 15A should also provide that a matter should not be referred to mediation where there has been a previous failed attempt at mediation in relation to the same matter.
Violence should never be mediated
5.50 It should be emphasised that this section deals exclusively with mediation of APVO disputes. The Commission is of the view that mediation should not be encouraged in relation to ADVOs. The Commission concurs with the arguments put in submissions that the fear and imbalance of power typically characterising domestic violence makes mediation in ADVO matters unsuitable, unproductive and unsafe.
5.51 In encouraging greater recourse to mediation in APVO disputes, the Commission recognises that not all APVOs are based on trivial complaints. Many involve serious physical and sexual violence and intimidation. In these cases, mediation should never be attempted. Accordingly, the new provision recommended by the Commission should specifically and clearly state that matters should not be referred to mediation where there is a history of, or allegations of, personal violence, or conduct amounting to serious harassment. Not only would mediation in these circumstances exacerbate the danger for the applicant, it would also present a threat to the mediator.
5.52 As noted in the CJC submission, sometimes the presenting issue may appear rather trivial, but issues of violence or harassment may emerge on further investigation. For this reason, the new provision should also enable the mediation service to determine that a matter referred to it is in fact not suitable for mediation.
RECOMMENDATION 17
A new section should be included in Part 15A to empower a Chamber Magistrate or a Magistrate to refer suitable APVO matters to an appropriate mediation service. That referral should be able to be made at any time, either before or after process has been issued, and in any circumstances where the court deems mediation to be appropriate, whether or not the parties consent to the matter being mediated.
That section should state that matters should not be referred where:
- there is a history of physical violence; or
- there are allegations of a personal violence offence; or
- there is conduct amounting to harassment relating to the complainant’s disability (including HIV/AIDS status), race, religion, homosexuality, or transgender status; or
- there has been a previous failed attempt at mediation in relation to the same issue; or
- the mediation service has assessed that a dispute is not suitable for mediation.
The terms of a standard APVO should also be amended to provide that parties may contact each other for the purpose of arranging or engaging in mediation.
FOOTNOTES
1. In 2002, 6,280 final APVOs were granted by local courts in NSW, representing approximately 39% of all final AVOs granted: Local Court NSW, Annual review 2002 at 7.
2. Wallin v Tiernan [1999] NSWCA 353 (Meagher JA, Stein JA, and Davies AJA). See also J Hickey and S Cumines, Apprehended Violence Orders: a survey of magistrates (Judicial Commission of NSW, Monograph Series 20, 1999) (“Magistrates Survey 1999”) at 44-45.
3. M McMillan “Should we be more apprehensive about Apprehended Violence Orders?” (1999) 37(11) Law Society Journal 48 at 56. See para 3.81-3.82.
4. NSW Women’s Refuge Movement, Submission.
5. Magistrates Survey 1999 at 25-27. Conversely, all respondents to this survey considered that ADVOs were effective in responding to domestic violence.
6. Magistrates Survey 1999 at 25-27.
7. CLRD Discussion Paper at 11.
8. CLRD Discussion Paper at 11.
9. This is opposed to 68% who believed the Local Court was the most appropriate forum for dealing with ADVOs. Nearly one third of Magistrates said if an APVO involved physical violence, then the Local Court was the best forum, but if it was “trivial” or “non-violent”, then Community Justice Centres were more appropriate: Magistrates Survey 1999 at 21.
10. Crimes Act s 562AK.
11. Crimes Act s 562AK(2).
12. Crimes Act s 562AK(1).
13. Crimes Act s 562AK(3).
14. NSW, Parliamentary Debates (Hansard) Legislative Council, 25 November 1999 at 3674.
15. Crimes Act s 562AK(4).
16. Crimes Act s 562AK(5).
17. Local Court NSW, Submission.
18. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Hawkesbury Nepean Community Legal Centre, Submission; Manly Warringah Women’s Resource Centre, Submission; NSW Women’s Refuge Movement, Submission; South West Sydney Legal Centre, Submission.
19. NSW, Department for Women, Submission.
20. Graham Johnson, Magistrate, Submission.
21. Law Society of NSW, Criminal Law Committee, Submission; Newcastle consultation.
22. Children’s Magistrate, Lidcombe Children’s Court, Submission.
23. NSW Police Service, Submission; Jane Wangmann, Submission. The Commission discusses the need for more research and data on APVOs at para 3.85-3.89.
24. Blue Mountains Community Legal Centre, Submission.
25. Chief Magistrate, Local Court of NSW, Submission.
26. NSW, Department for Women, Submission; Jane Wangmann, Submission.
27. Chief Magistrate, Local Court of NSW, Submission; Legal Aid NSW, Submission; NSW Commission for Children and Young People, Submission; Jane Wangmann, Submission.
28. NSW Commission for Children and Young People, Submission.
29. Blue Mountains Community Legal Centre, Submission.
30. AVLICC, Submission.
31. Graham Johnson, Magistrate, Submission.
32. Children’s Magistrate, Lidcombe Children’s Court, Submission.
33. Children’s Magistrate, Lidcombe Children’s Court, Submission.
34. Local Court NSW, Submission.
35. Legal Aid NSW, Submission; Local Court NSW, Submission.
36. The role of mediation in APVO matters is discussed at para 5.25-5.52 below.
37. Local Court NSW, Submission. This accords with the view of Community Justice Centres.
38. See Crimes Act s 562AB.
39. See Chapter 12 for a discussion of the stalking and intimidation offence.
40. This represents approximately 30.43% of all AVO applications received in 2002: Local Court NSW, Annual review 2002 at 7.
41. Local Court NSW, Annual review 2002 at 7.
42. See, in particular, Jane Wangmann, Submission.
43. Local Courts do not keep statistics on the numbers of APVO complaints made by police as the percentage is too small.
44. The role of mediation in APVO disputes is discussed at para 5.25-5.52 below.
45. AVLICC, Submission; Blue Mountains Community Legal Centre, Submission; Chief Magistrate, Local Court of NSW, Submission; Ed Laginha, Submission; Graham Johnson, Magistrate, Submission; Legal Aid NSW, Submission; Law Society of NSW, Criminal Law Committee, Submission; Local Court NSW, Submission; NSW Commission for Children and Young People, Submission.
46. Legal Aid NSW, Submission.
47. Local Court NSW, Submission.
48. For example, NSW Police told the Commission of a collaboration between the Tuggerah Local Area Command and the local Community Justice Centre (‘CJC”). Running from July to November 2001, the project essentially aimed to intervene earlier in the response to and management of community disputes and reduce the number of repeated call outs police were required to make. Referrals from the police to the CJC were conducted on a voluntary basis, with parties retaining the option to access APVOs or other legal remedies. The project was considered to be successful, in that there was an increase in referrals to the CJC by police and a reduction in repeated call-outs of police to disputes. NSW Police is considering the merits of introducing the projects in other Commands: NSW Police Service, Submission.
49. Intellectual Disability Rights Service Inc, Submission. For guidelines, see J Simpson, “Guarded Participation: Alternative Dispute Resolution and People With Disabilities” (2003) 14(1) Australian Dispute Resolution Journal 31.
50. NSW Commission for Children and Young People, Submission.
51. Blue Mountains Community Legal Centre, Submission; Children’s Magistrate, Lidcombe Children’s Court, Submission.
52. Blue Mountains Community Legal Centre, Submission.
53. See also Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Hawkesbury Nepean Community Legal Centre, Submission; Legal Aid NSW, Submission; NSW Department of Community Services, Submission; Jane Wangmann, Submission; Bourke consultation. See also H Astor “Domestic violence and mediation” (1990) 1 Australian Dispute Resolution Journal 143.
54. AVLICC, Submission; Blue Mountains Community Legal Centre, Submission; NSW, Department for Women, Submission; Law Society of NSW, Criminal Law Committee, Submission; Legal Aid NSW, Submission; Chief Magistrate, Local Court of NSW, Submission; Western NSW Community Legal Centre, Submission; South West Sydney Legal Centre, Submission; Bourke consultation.
55. Western NSW Community Legal Centre, Submission; South West Sydney Legal Centre, Submission.
56. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Intellectual Disability Rights Service Inc, Submission.
57. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
58. Mt Druitt and Area Community Legal Centre, Submission.
59. Graham Johnson, Magistrate, Submission.
60. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Legal Aid NSW, Submission; Jane Wangmann, Submission.
61. Multicultural Disability Advocacy Association, Submission. See Chapter 3 for a discussion of the need for greater resources, including culturally specific and appropriate services.
62. Multicultural Disability Advocacy Association, Submission.
63. Local Court NSW, Submission; Ed Laginha, Submission.
64. Legal Aid NSW, Submission.
65. AVLICC, Submission; Blue Mountains Community Legal Centre, Submission; NSW, Department for Women, Submission; Law Society of NSW, Criminal Law Committee, Submission; Legal Aid NSW, Submission.
66. AVLICC, Submission.
67. Graham Johnson, Magistrate, Submission.
68. Chief Magistrate, Local Court of NSW, Submission; NSW, Department for Women, Submission.
69. Local Court NSW, Submission.
70. Ed Laginha, Submission.
71. Law Society of NSW, Criminal Law Committee, Submission.
72. Ed Laginha, Submission.
73. NSW Local Courts Monthly Statistics (1 July 2002-31 December 2002).
74. NSW, Community Justice Centres, Submission. The discrepancy between the number of files opened and the number of APVOs is because some of the files involved cross-applications.
75. CJCs base this estimate on the assumption that the percentage of APVO referrals from Local Courts would increase from 8% to 40%: NSW, Community Justice Centres, Submission.
