7.1 This chapter deals with the three types of AVOs currently available under Part 15A: telephone interim orders, interim orders and final orders. In addition this chapter makes recommendations regarding a new type of order named an ancillary property order which may be made for the recovery of personal property from the family home.
TELEPHONE INTERIM ORDERS
7.2 When introducing the AVO legislation into Parliament, the then Premier, the Hon Neville Wran, QC, MP stated that the intention of AVO provisions was to “provide effective and immediate relief”.1 Telephone Interim Orders (“TIOs”) are the way in which such “immediate” relief is provided as they are available by telephone2 when it is not practicable for a court to make an immediate order because of the time or place at which the incident occurs. Only police are permitted to apply for such orders3 and can do so if, when attending an incident, they have “good reason to believe an order is necessary to ensure the safety of the person who would be protected by the order or to prevent substantial damage to any property of that person”.4 Such orders may either be to protect a person from personal violence or domestic violence. Police officers must apply for a TIO if they suspect or believe that domestic violence, stalking or child abuse “has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made”,5 unless the person is at least 16 years of age and intends to make the complaint themselves, or if the police officer believes there is good reason not to apply for a TIO.6
Effectiveness of TIOs
7.3 In DP 45, the Commission asked whether the TIO provisions were operating to achieve their aim of providing sufficient and immediate protection against actual and threatened violence. Overall, the submissions received suggested that the grounds for, and terms on which TIOs are granted are satisfactory,7 although one submission suggested that in some cases, it is too easy for the police to get TIOs.8
7.4 There was some concern expressed about police not applying for TIOs when they are clearly needed.9 Some suggested the need for further police guidelines as to when to apply for them.10 Others suggested that it should be mandatory to apply for a standard TIO if the police charged a person with a domestic violence offence,11 and that s 562H(2A) should be strengthened to require police to apply for a TIO where they believe a domestic violence offence has been committed or is imminent, unless the officer knows an AVO is already in place.12 There is also concern that a TIO does not result in the suspension of a firearms licence, whereas it should given that the circumstances in which TIOs are granted are often very volatile.13 It was also suggested that TIOs should be made final if the defendant does not appear in court.14
7.5 There is also a view that there should be a presumption in favour of granting a TIO, pending determination of a final order. Such a presumption should apply where a domestic violence offence has been committed, the application has been brought by the police and the officer is concerned for the safety of the victim, unless the court considers that there is a good reason for not issuing an AVO.15 An authorised justice must record reasons for not issuing a TIO under such circumstances.16
7.6 The concern was also expressed that courts do not grant TIOs during court hours.17 This means that an application for an ordinary interim order must be made during those times, which can involve delays involving hours, even days. Indeed, the Commission heard that if an incident occurs at 10am, it is often quicker for police to wait until after 5pm to apply for a TIO than to apply for an ordinary interim order immediately at 10am.18
7.7 Where a TIO is applied for after hours and police seek to exclude the defendant from the home, this cannot be done if there is an existing AVO that does not provide for exclusion, as police do not have the power to vary the existing order. Some agencies have suggested that the police should have the power to vary an existing AVO in order to provide the necessary protection to the applicant.19 The reverse of this situation has also been reported where the defendant is arrested on assault charges, bail is refused and a TIO has been taken out. In such a case, if the TIO provides that the defendant is excluded from the home, the bail court judge cannot vary this condition, even if the applicant wants it varied. To alleviate such problems, it has been suggested that TIOs, ADVOs and criminal charges all be heard on the same date.20
7.8 Section 562H(12) provides that the police have the power to arrest and detain the defendant at the scene of the incident, or, where the defendant refuses to remain at the scene of the incident, take the person to the police station for the purpose of serving the TIO. However, there appears to be no power to require the defendant to vacate the premises where, for instance, the defendant wishes to remain at the scene at the risk of jeopardising the safety of the applicant.21
7.9 There is also some concern about s 562H(2)(c), which refers to the “police officer attending the incident”. Some authorised justices interpret this provision to mean that a police officer must attend the place where the incident occurred. This excludes incidents where a person in need of protection attends the police station immediately after the incident. For example, where a person in need of protection is being followed by the defendant in a car, and attends the police station as a means of gaining refuge, or where a person escapes a dangerous situation and attends a police station immediately. While the above provision may cover both these situations, it seems capable of a more restrictive interpretation and may benefit from clarification.22
7.10 The Police have also sought clarification about inconsistencies in the wording of s 562H. For example, s 562H(5A) states that a TIO is taken, for the purposes of this Part, to be a complaint for an order under s 562C. However, s 562H(13) states that s 562C-562GC and s 562J-562N do not apply to TIOs.23
7.11 It has also been suggested that dismissed or lapsed TIOs and Interim Orders should be removed from the police data records. This is because police, the Department of Community Services and others, have been known to retain and use these records against defendants in a variety of ways. There is a strong argument that an order so easily obtained ex-parte should be entirely removed from the COPs databases or other files in a similar way to the removal or destruction of fingerprints and other records on a successful acquittal.24
Duration
7.12 A TIO lasts for 14 days, unless the court revokes it, makes an interim order or dismisses the application for an AVO. If the closest local court is not sitting within the 14 day period, it may be extended to 28 days.25
7.13 Various views were expressed in submissions. Some suggested that all TIOs should run for 28 days unless the defendant is present and objects.26 It was also suggested that the variable time limit (14 or 28 days), is confusing and that it should be 28 days for all TIOs.27 Still others stated there should be no time limit, but that a TIO should remain in force until it is replaced with a final order, or withdrawn or revoked.28 In some regional centres, it was pointed out that the expiry of a TIO can be dangerous because it places the defendant on notice: the defendant simply does not turn up to the hearing and absconds so the order cannot be served; the TIO expires, and there is then no protection for the applicant.29 Another problem can arise where a TIO is made, and the defendant is charged concurrently with a personal violence offence, and neither the applicant nor defendant appear at court, resulting in the making of a fresh order based on a criminal charge pursuant to s 562BE.30 If there is a problem serving the fresh AVO, and the TIO expires after 14 or 28 days, the applicant will be left unprotected until the new order is served. In such circumstances the question arises whether the Magistrate should be able to extend the TIO until service of the new order has occurred, or have power to issue a warrant under an operative TIO, since one would lie in respect of the criminal offence anyway.31
TIOs and property
7.14 An application for a TIO may be made if the police officer attending an incident has good reason to believe that an order is necessary to ensure the safety of the person who would be protected by the order, or to prevent substantial damage to any property of that person.32 The TIO provides that the defendant must not assault, molest, harass, threaten or otherwise interfere with, the protected person.33 Section 562H(5) specifies a list of further restrictions that may be placed on the defendant, one of which is prohibiting the defendant from destroying or deliberately damaging or interfering with the protected person’s property.34 However, that restriction may only be imposed where the police officer applying for the TIO has good reason to believe that the safety of the protected person is in imminent danger from the defendant.35 The result of this combination of provisions appears to be that, while an application for a TIO may be made on the basis of damage to property alone, the terms of the order may only protect the property of the protected person where the safety of that person is in imminent danger, and not otherwise. This is inconsistent with other interim and final orders, which may operate to protect property whether or not the safety of the protected person is in immediate threat.36
7.15 Many submissions expressed the view that this anomaly should be rectified to be consistent with other types of orders.37 Others suggested that TIOs should not be extended to cover property alone, as it would run counter to the primary of purpose of AVO legislation which is to prevent violence against the person.38
7.16 Some submissions suggested that the current provisions offer inadequate protection.39 In particular, it was suggested that condition 11 of the Standard Orders (protection of property) should form part of all TIOs.40 The Chief Magistrate considers, however, that TIOs already provide adequate protection for property in most cases.
7.17 There is also concern that, in rural areas, TIOs may result in unwarranted injustice for the defendant. For example, to restrain the defendant from being within a specified distance of a particular address could mean that the defendant has to leave town. While this may be justified in some cases, it can operate unfairly in others.41 It was suggested that s 37(2A) of the Bail Act be considered as a useful precedent in this regard where the order does not impose conditions that are any more onerous than is required for the protection of the person and in the circumstances of the defendant.42
The Commission’s views
7.18 In making recommendations with regard to TIOs, the Commission has been guided by the fact that the purpose of TIOs is to provide protection in emergency situations. It is important to recognise that having a TIO in place may make the difference between safety and acute danger, particularly for victims of domestic violence.
7.19 The Commission is concerned that TIOs may not always be available in emergencies. It may be difficult to reach the authorised justice on TIO duty, or, as the Commission heard in consultations, TIOs may not be available during court hours. Section 562H(2)(b) provides that an application for a TIO may be made where it is not practicable to make an immediate complaint for an interim order because of the time at which, or the place at which, the incident occurs. This has been interpreted in some courts as meaning that a TIO will only be available outside court sitting times, or where distance precludes visiting a court. Otherwise, an ordinary interim order must be sought. However, applying for an interim order may involve waiting at a local court for hours, which may not be feasible or desirable in situations requiring immediate action. The Commission is of the view that this provision should be amended to reflect the emergency nature of a TIO. The provision should state that an application for a TIO may be made 24 hours a day where the police officer making the application has good reason to believe that a person requires immediate protection under such an order, and it is not practicable to lodge a complaint for an interim order.
7.20 For the same reason, the Commission also believes that s 562H should be amended to make it clear that a police officer must apply for a TIO where a defendant is charged with a domestic violence offence, unless an AVO is already in place.43 Additionally, where an authorised justice cannot be contacted, police officers (that is, duty officers above the rank of Inspectors) ought to be able to grant a TIO.44 Such a TIO should only be in force for 48 hours. It is envisaged that this would be similar to the power police currently have to impose bail conditions. It is not intended that police ought to be able to issue exclusion orders under a TIO without the approval of an authorised justice. While some may view this as a move to making such orders too easy to obtain, the Commission believes that the public and individual benefit from making an urgent order, outweighs any risk of a miscarriage of justice.
7.21 The Commission is of the view that TIOs should afford no less protection than other types of AVOs. Consequently, the Commission recommends that s 562H(5) be clarified to bring it into line with s 562AE(3) and s 562AI(3) to provide that a TIO may operate to protect a person’s property regardless of whether the safety of that person is in imminent danger.
7.22 In relation to the duration of a TIO, the Commission is of the view that the variable limit of 14 to 28 days is confusing. The Commission favours imposing a standard time limit of 28 days which may be extended if the matter has not been heard. In other words, the TIO should not lapse unless the victim is provided with an alternative mode of protection by way of an interim or final order unless the matter has been withdrawn or revoked.
7.23 The Commission is also of the view that s 562H should be clarified to avoid the inconsistencies referred to in paragraph 7.10 above. Accordingly, s 562H(13) should be amended to remove the reference to s 562C.
RECOMMENDATION 21
Section 562H(2)(b) should be amended to clarify that TIOs are available on a 24 hour basis (whether or not the court is sitting) in circumstances where the police officer making the application has good reason to believe that a person requires immediate protection under such an order, and it is not practicable to lodge a complaint for an interim order.
RECOMMENDATION 22
Section 562H should be amended to clarify that a police officer must apply for a TIO where a defendant is charged with a domestic violence offence, unless an AVO is already in place.
RECOMMENDATION 23
Where an authorised justice cannot be contacted, a police officer above the rank of Inspector may grant a TIO which shall be in force for 48 hours.
RECOMMENDATION 24
Section 562H(5) should be amended to provide that a TIO may prohibit destruction of, deliberate damage to or interference with the property of the protected person regardless of whether the safety of that person is also in immediate danger.
RECOMMENDATION 25
Sections 562H(9) and (9A) should be amended to provide that all TIOs should remain in force for up to 28 days (and extended at the discretion of the Magistrate).
RECOMMENDATION 26
Section 562H(13) should be amended to provide that s 562C applies to TIOs, but s 562D-s 562GC and s 562J-s 562N do not.
INTERIM ORDERS
7.24 An interim AVO can be made to provide protection for the period between making the complaint and the hearing to ensure that the person in need of protection is afforded the necessary protection until the matter is resolved in court. An interim AVO may be made in circumstances involving personal or domestic violence and can be made whether the defendant is present or not. However, it does not take effect until it has been served on the defendant. If the defendant is present in court when the interim order is made it takes effect immediately.45 If an interim order is made in the absence of the defendant, the court summons the defendant to appear at a further hearing as soon as practicable to decide on whether to make a final order. The court can confirm, vary or revoke the interim order, whether or not the defendant is present at the hearing.46 While in force, the interim order has the same effect as a final order.47
Grounds for interim orders
7.25 An interim order can be made “if it appears to the court that it is necessary or appropriate to do so in the circumstances”.48 This statement provides little or no guidance to the court on how to exercise the power. As such, the interpretation varies from case to case and Magistrate to Magistrate.
Other jurisdictions
7.26 Other jurisdictions employ more specific tests. For instance, in the ACT, the court can make an order if “it is necessary… to ensure the safety of the aggrieved person until the application for a final order is decided”.49 In Queensland, a temporary order can be made “only if it appears to the court …that an act of domestic violence has been committed against the aggrieved spouse by the respondent spouse”.50 In Victoria, the court can make an interim intervention order if it is “necessary to ensure the safety of the aggrieved family member or to preserve any property of the aggrieved family member pending the hearing and determination of the complaint”.51 In Tasmania, the test is less precise in that justices may make an interim order “if they see sufficient cause to do so”.52 In Western Australia, the grounds for an interim order are the same as for a final order, that the court must be satisfied that, unless restrained, the respondent is likely to commit a personal offence against the applicant, or behave in a manner that will cause fear of such an offence.53
Views expressed in submissions
7.27 Some submissions expressed the view that interim orders are not being granted when they should be.54 Magistrates sometimes place bail conditions on defendants instead of granting an AVO which is not as beneficial for the applicant.55 It has been suggested that the grounds should be clarified and that it should be easier to get an interim order than a final order.56 It has also been reported that in emergency circumstances where an order is contested, Magistrates have been known to decline to make an immediate interim order but list the matter for hearing, leaving the applicant unprotected in the meantime.57 Some suggest that there should be a presumption in favour of granting an interim order under s 562BB pending determination of a final order where a domestic violence offence has been committed, and the application has been brought by the police and the officer is concerned for the safety of the applicant, unless the court considers that there is a good reason for not issuing an interim AVO.58 An authorised justice should also be required to record reasons for not issuing.59 Overall, submissions expressed the view that the grounds for an interim AVO should be clarified to focus on the safety of the applicant,60 as there is still too much scope for uncertainty and varying interpretations by different Magistrates.61 Others have suggested that clear and more specific grounds would provide greater certainty but discretion by Magistrates should not be limited so as to lead to constraining Magistrates too far and losing the benefit of their views in a particular set of unique circumstances.62
7.28 The Chief Magistrate is of the view that the wide discretion should remain, and that grounds should not be made more specific, but that the threshold should be raised. Thus, instead of granting an interim order if the court considers it “appropriate or necessary”, it should be granted if it is appropriate and necessary”.63
7.29 It has also been suggested that the criteria for granting an interim ADVO for all domestic violence victims should be the same as for children and for people with an appreciably below average general intelligence function, to remove the need for a victim of domestic violence actually to fear the commission of a domestic violence offence.64 The rationale for this is that it is often unreasonable to expect a victim to be able to articulate her or his fears: constant systematic abuse means that the same protection should be offered to domestic violence victims as to those in society who are less able to protect themselves.65 This would allow police to present evidence to court seeking an order even if the victim did not feel they needed protection.66
7.30 Others have suggested that interim orders are being sought too readily: a defendant is often met with a smorgasbord of interim orders which are sought on the first return date of an AVO, orders that on any reasonable view of the matter would not be sustained at a final hearing. As such, it has been suggested that interim orders should only be issued if they are necessary to ensure the safety of the victim until the application for a final order is decided.67
The Commission’s views
7.31 With regard to clarifying the grounds upon which an interim order may be granted, the Commission favours the current flexibility that attaches to Magistrates being able to use their discretion. The Commission is of the view that many of the issues raised can be resolved by better implementation and understanding of the spirit of the legislation. To that extent, the comments made by the Commission in Chapter 3 are applicable.
Procedure
7.32 The issue of procedural fairness in dealing with interim AVO complaints was raised in a number of submissions and consultations. Magistrates are concerned about how far they need to go in the interests of procedural fairness when interim orders are opposed and how much scope they should give the defendant to argue the case and present evidence. A defendant’s solicitor’s request for an adjournment needs to be balanced with the protection that must be afforded to the applicant. Some Magistrates follow Smart v Johnston68 strictly. This case holds that it is a denial of natural justice for an interim order to be made without giving both parties the opportunity to lead evidence and a reasonable opportunity to cross-examine.69 Some feel this introduces untenable delays, leaves applicants without protection while the hearing continues for days,70 and can be used as leverage by the defendant to get the applicant to withdraw. At the same time, given the overburdened AVO lists, it is important to ensure that it does not “blow out into a mini-hearing”.71
7.33 The Chief Magistrate suggests that the practice in In the Marriage of C72 be followed, where the Full Court of the Family Court upheld the decision of the judge at first instance, who followed the usual practice of determining an interim custody application on the basis of affidavits alone, without allowing cross-examination.73
7.34 There is also a view that this is a matter of a few Magistrates following inappropriate case law, and does require legislative amendment.74 Another view is that where a standard order is sought75 that does not involve excluding the defendant from the family home, there should be no scope for cross-examination as the order largely prohibits what the defendant should not be doing anyway. However, there should be more scope for presenting evidence where an exclusion order is being sought, or where firearms are an issue, or if the order would place undue restrictions on the defendant’s living arrangements or access to his or her children.76
7.35 It has been suggested that the court should have the discretion to suspend the rules of evidence, and inform itself on a matter in any manner it considers fit, including enabling the use of video cameras and creating more flexibility for people with a disability.77 It has also been suggested that an added safety measure be introduced in situations where the applicant fails to appear at court on the date set down for mention. In those circumstances, the Magistrate should adjourn, but not dismiss, the matter to enable the police to investigate the reasons for the non-appearance by the applicant.78
7.36 The Children’s Magistrate at Lidcombe Children’s Court recommends that the entire procedure for applying for AVOs be overhauled and brought more into line with civil proceedings generally:79
The order should be sought on application (replacing a complaint) that sets out clearly the orders sought and the grounds upon which the orders are sought. Supporting material should be by way of affidavit with the flexibility that in interlocutory proceedings (ie interim orders) the court may proceed on any material (in whatever form it is presented) that the court considers sufficiently reliable … There is definitely a need for some pre hearing disclosure of proofs of evidence of witnesses (subject to safeguards such as non disclosure of addresses). This is desirable simply as a matter of fairness.80
7.37 The legislation should also contain a power to make rules of procedure and practice directions in relation to both ADVO and APVO interim proceedings, so as to get these more procedural elements out of the legislation, promote flexibility and improve consistency between Magistrates.81
7.38 The Commission is of the view that these procedural issues do not warrant legislative amendment and would be best dealt with through judicial training and education.
The duration of an interim order
7.39 An interim order remains in force until it is withdrawn, dismissed or revoked, or until a final order has been made.82 Thus, an interim order may last for months, even years.
Approach adopted in other jurisdictions
7.40 There has been some concern regarding this potentially unlimited duration given that an interim AVO may impose significant restrictions on the defendant. In some jurisdictions, legislation has addressed this concern by imposing time limits on the duration of interim orders. In the ACT for instance, an interim order remains in force for up to 16 weeks where it is made by consent, and otherwise up to 8 weeks. It can be extended for 8 weeks, as long as it will not be in force for more than 16 weeks in total. A further interim order can only be made in exceptional circumstances.83 In Tasmania, an interim order cannot exceed 60 days.84 In Western Australia, there is a presumption in favour of finalising an interim order. Once an interim order is made, the defendant has 21 days to object and if within that period there is no objection, then the interim order automatically becomes a final order. However, the defendant’s right to contest the order is preserved.85 A similar approach is adopted in New Zealand where a protection order is first issued as a “temporary order”. If within three months the order is not defended, it automatically becomes a final order.86
Views expressed in submissions
7.41 Some submissions expressed the view that the duration of interim orders should be limited.87 It was suggested that matters are generally finalised within three months88 and that legislation should provide that a matter must be withdrawn, dismissed or finalised within 6 months of making the application, unless the court otherwise orders or exceptional circumstances exist.89 It is understood that this could help where some Magistrates defer finalisation of an AVO pending the outcome of Family Law proceedings (anecdotal information suggests this may be happening).90 Imposing a time limit would also prevent circumstances where the applicant is forced to attend court where a matter keeps being adjourned.91 Similarly, imposing a time limit may prevent lawyers from seeking the continuation of interim orders claiming that they have not been breached, nullifying the need for seeking a final order.92 There is also the concern that interim orders are often obtained ex parte which in the absence of a maximum time limit can be disadvantageous to the defendant.93
7.42 Others disagreed that there should be a time limit94 and suggested that the duration should be at the discretion of the court.95 It was suggested that if a matter is listed as soon as practicable to determine the final order, there should be no need to place limits on the duration of the interim order.96 On the other hand, as the court determines when the hearing on the charge will occur, the duration of the interim order can be lengthy. Limiting the duration of interim orders in these circumstances may place the applicant at risk of further violence. Where an interim order is made and served, and then the final order is made ex parte, the final order must be served on the defendant. Police officers’ experience indicates that defendants often avoid service of the final order. In these cases, ensuring that the interim order is enforceable until the final AVO is served protects victims from further violence.97
7.43 Limiting the duration of an order may also have the effect of restricting Magistrates’ flexibility to use longer orders where there are difficulties with service, etc.98 Longer orders (3-6 months) can be useful, for example, where parties agree to interim orders to help settle a situation pending resolution of a property/custody contact dispute; while they attend mediation or counselling, or while one party is seeking alternative accommodation.99 Also parties may not then need to proceed to a final order, and so avoid the long-term impact on the defendant’s ability to hold a firearms licence.100 Either party can have the matter relisted and set down for hearing, or apply to vary the interim order.101 Also, s 562BF requires the Court to make an interim order where a person is charged with a domestic violence offence, which is to remain in place until the finalisation of the charge. It would be unfair to the applicant if that order expired before the charge was finalised.102
7.44 Longer interim orders of 6-12 months are usually the result of successive adjournments or concurrent legal proceedings. It would be unfair and impracticable to impose an arbitrary term for interim orders, and would not satisfy the safety needs of the complainant.103
Automatic conversion to final order
7.45 Many submissions expressed support for the automatic conversion of interim orders into final AVOs after a specified time period has elapsed.104 Some suggested that the orders be made final after 14 days.105 Where no notice is given to defend the action, it has been suggested that the order should convert within 3 months,106 provided service has taken place on the defendant and there is a clear and appropriate procedure set out (that parties are aware of) for disputing the final order where necessary, especially where the interim order was made ex-parte.107
7.46 Some of the advantages of automatic conversion are said to be that it circumvents the problem of a defendant avoiding service,108 and may have the effect of reducing withdrawal rates.109 It may also spare the applicant the stress and expense of preparing for a hearing on the assumption that it will be defended and the defendant does not appear.
7.47 The NSW Police Service was particularly in favour of this proposal, as it would reduce police time spent at court seeking the final order, and time spent serving the final order, provided the defendant has had a specified period to make representations to court to contest the order. It was suggested that TIOs could also be included in this proposal, further streamlining the process, while not diminishing protection afforded to the applicant. Variations to the order could then be made through the current processes.110 Concerns about the defendant not understanding, or purporting not to understand, the conditions of the order may be exacerbated by an automatic conversion, although stricter provisions on information to be provided to defendants would diminish this possibility.
7.48 There were however many submissions that opposed this option.111 It was felt that different grounds do and should continue to apply for interim and final AVOs.112 If automatic conversion occurred, Magistrates may become reluctant to issue interim orders, and fewer defendants may consent, which would not contribute to the desired level of protection.113
7.49 There is also a risk that an interim hearing, listed quickly for safety reasons, may not have the benefit of medical records and other forms of evidence that would be available with time.114 Also, the implications for firearms licence holders are much greater if a final AVO is granted than if an interim order is granted. Firearms holders may therefore be less likely to consent to interim orders if there was a prospect of them automatically converting to final orders.
Who should be able to issue interim AVOs?
7.50 There are a number of apparent difficulties associated with issuing interim orders quickly in an emergency.
7.51 Various suggestions have been made in this regard. One option was that the police115 should have the power to issue interim orders on the spot in certain specific situations such as:
- when charging someone with an offence under s 562AB or a domestic violence offence, in the same way that they can impose bail conditions.116 In these circumstances, the court must make an AVO under s 562BF, and the applicant will receive immediate protection without having to wait for a Magistrate to be available or an authorised justice to be contacted after hours.117 It could also form part of the bail conditions relating to the charge.118
- where no charges are being laid and only a standard AVO is being sought. It has been suggested that in those circumstances, police should not be able to issue an AVO with more specific conditions, such exclusion orders, which should still have to be listed before an authorised justice.119
7.52 It has further been suggested that police should also have the power to arrest and detain for the purpose of serving an interim AVO, as they do in relation to TIOs.120
The Commission’s views
7.53 The Commission is of the view that interim orders should not automatically convert to final orders but should have a time limit of 6 months attached to them. Accordingly, s 562E should be amended to provide that an interim AVO will cease to have effect after 6 months, unless it has previously been revoked, confirmed as a final AVO, or the complaint is withdrawn or dismissed. Imposing such a time limit may also have the benefit of forcing the courts to deal with the matters more expeditiously.
7.54 The Commission agrees that the police ought to have the power to arrest and detain for the purpose of serving an interim AVO.121 The Commission’s recommendation that police officers be authorised to issue TIOs on a 24 hour basis will alleviate the problems discussed above in relation to difficulties associated with issuing interim orders in an emergency.
FINAL ORDERS
7.55 A final order can be made where both parties consent to the order, or where the order is contested after a hearing. As with interim orders, a final order is not effective until it is served on the defendant. Once served, the final order remains in force for the period specified by the court to ensure the protection of the applicant. If no period is specified, the order remains in force for 6 months.122
Adequacy of the default duration
Other jurisdictions
7.56 In the ACT, a final domestic violence order remains in force for a specified period, or 2 years if no period is specified. A longer order can be made in special or exceptional circumstances. A final personal protection order remains in force for a specified period or 12 months if no period is specified.123 In the Northern Territory an order remains in force for the specified period with no default duration.124 In Queensland, a domestic violence order remains in force for a specified period of up to 2 years. In special circumstances, the court can specify a longer period.125 In Tasmania, the order remains in force for whatever period the court considers necessary to protect the person for whose benefit the order is made.126 In Victoria, an intervention order remains in force for the time specified or, if no period is specified, until it is revoked.127 In Western Australia, a final violence restraining order remains in force for the specified period or if no period is specified, for 2 years. A misconduct restraining order is generally of a shorter duration, remaining in force for the specified period or, if no period is specified, for 12 months.128
Views expressed in submissions
7.57 Given that the courts usually specify the duration of a final order, some submissions suggested that the default duration should remain unchanged.129
7.58 However, others suggested that 6 months is insufficient because of the nature of the disputes and frequent involvement of children in the circumstances. A particular problem with the 6 month default period appears to be that applicants who are not legally assisted have to return to court within 4 to 5 months to make an application for an extension or variation of their order.130 It has therefore been suggested that the default period should be increased to 12 months to reflect reality.131 It also appears that the default duration usually becomes relevant where the applicant is self-represented, since in most other cases a duration is specified in the AVO, and particular care needs to be taken to ensure that unrepresented applicants are not disadvantaged.132 Others suggested that the default duration should be 2 years,133 consistent with the ACT, Queensland and Western Australian legislation.
7.59 Another view was that consideration could be given to changing the wording to state that orders should ordinarily be granted for 6 months and that orders for a longer period would be granted only if “substantial” reasons are given to justify the making of such an order. The rationale for this view is that AVOs can present a major restriction on a person’s liberty and freedom and defendants should have these restrictions imposed for the minimum period necessary whilst keeping in mind the need to protect the applicant.134
7.60 In sharp contrast, it has also been suggested that in some circumstances lifetime AVOs are appropriate135 as many women need to keep coming back to court to apply for extensions.136 In Western Australia, a permanent protection order was granted under the Restraining Orders Act 1997 (WA), where violence extended for a period in excess of 12 years.137
7.61 Where a final order needs to be extended without notice of the application having been served on the defendant, such an extension can only be granted if the application has been lodged at least 21 days before the order is due to expire and it is listed for mention 14 days after the application was lodged.138 However, in practical terms court delays can leave the applicant without protection if the original order expires in the interim. Once expired, technically there is nothing to extend. This leaves the applicant with no protection while the final order is being extended.139
7.62 In practice it also appears that where an AVO which is valid for 2 years is not breached during that time, it is very unlikely that an extension will be granted. However, it is often after the expiration of the order that the harassment and stalking begins again. It has been suggested that in such circumstances, the victim should be able to apply for an extension within 3 or 6 months after the expiration of an order. Another option is to be able to apply for an extension any time before the expiration of an AVO. Either way, there must be consistency among Magistrates with regard to this matter.140
Grounds
7.63 The court can make a final AVO when the person to be protected has reasonable grounds to fear and in fact fears:
(a) the commission by the other person of a personal violence offence against the person, or
(b) the engagement of the other person in conduct amounting to harassment or molestation of the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order, or
(c) the engagement of the other person in conduct in which the other person:
(i) intimidates the person or a person with whom the person has a domestic relationship, or
(ii) stalks the person,
being the conduct that, in the opinion of the court, is sufficient to warrant the making of the order.141
7.64 The grounds for making a final order are quite broad. They are both subjective and objective. The court must be satisfied that there are “reasonable grounds” to fear personal violence and that the applicant does in fact fear the defendant. If the subjective element is missing, an AVO will not be granted.142 There are three exceptions to this: where the applicant is under 16; where the applicant has a general intelligence function which is appreciably below average or where the defendant consents to the AVO.143
Other jurisdictions
7.65 Some jurisdictions such as South Australia use a “reasonable fear” test. The court may make a domestic violence restraining order if there is a reasonable apprehension that the defendant may, if not restrained, commit domestic violence and the court is satisfied that the making of the order is appropriate in the circumstances. In deciding whether to make an order, the court must consider a range of factors including the need to ensure family members are protected from domestic violence, the accommodation needs of family members, and any relevant family contact order.144
7.66 In the ACT, the court need only be satisfied that the respondent has engaged in domestic violence before making an order. In the case of personal violence, the court must be satisfied that the respondent has engaged in personal violence towards the aggrieved person and may do so again.145 A similar test is applied in Queensland with the additional requirement that the violence is likely to happen again.146
7.67 In Western Australia, the “reasonable fear” and “specific act” tests are combined. Thus the court may make a violence restraining order if it is appropriate in the circumstances and it is satisfied that, unless restrained, the respondent is likely to commit a personal violence offence against the applicant, or act in a manner that could cause fear of such an offence.147
7.68 The tests that focus on the “specific act” have been criticised as they require the applicant to have suffered violence before an order can be granted.148 The requirement to show that an act of violence is “likely” to happen again, has also been criticised as it may have the effect of denying protection to people in situations where violence is not “likely” but is still a real possibility.149
Views in submissions
7.69 Overall, the submissions expressed the view that the grounds require no change150 as they relate back to the objects of the Part: the safety of the applicant.151 It was also asserted that they cover a wide range of behaviour which reflects an understanding that domestic violence is not limited to physical violence.152 The requirement that the person in need of protection “has reasonable grounds to fear and in fact fears” is particularly important as it guides the court to consider the nature of domestic violence as being about power and control causing fear.153
7.70 Some submissions have suggested that it may be useful to consider a provision similar to that used in New Zealand which draws attention to the cumulative fear that arises from what may appear to others to be pleasant actions, for example, sending flowers.154 The court must have regard to the “perception of the applicant” and the effect of that behaviour on the applicant.155
7.71 For high risk, or “repeat” victims, where police have attended incidents involving the parties a number of times, Police have argued that other grounds for making an AVO should be considered. In this context the court should consider the following factors in making an AVO to enhance applicants’ safety, particularly for repeat incidents:
- the history of police attendances at the incident involving these parties in question; and
- whether the police hold fears for the applicant’s safety.
7.72 The issue of whether the applicant in fact fears is also said to be difficult to assess in situations where repeat incidents of domestic violence occur. In such circumstances, the likelihood of the applicant stating in court (often with the defendant present) that she or he “in fact” fears the defendant may be decreased. The applicant may fear retribution and further violence, and believe promises by the defendant that he or she will not repeat the violence. In these circumstances, where situations of domestic violence have repeatedly come to the attention of police, it has been suggested that the weighting given to the applicant’s statement in court regarding fear should be lessened and the weighting of other factors increased.156
7.73 Considering that, in matters where a charge is being heard, the determination of the final AVO may be delayed for some months, the factors detailed above should apply to interim orders. It has also been suggested that the weighting given to the applicant “in fact” fearing the defendant be lessened in those applications where there is a history of police attendance at incidents between the two parties.157 Police should also have power to arrest and detain for the purpose of serving final AVOs.158
7.74 There is also evidence that court have failed to make an interim or final AVOs where the defendant has pleaded guilty to, or been found guilty of, a domestic violence offence, even though Part 15A requires that they be issued.159 The court can decline to make an order if it “is not required”, but there is no provision for a Magistrate to give reasons for not issuing an AVO.160 Courts have reportedly declined to make orders in these circumstances if bail conditions exist, even though they do not have the same effect as an AVO.161 This should be clarified to state that an interim or final AVO must be issued where there is a domestic violence charge or conviction, respectively, except perhaps if the applicant specifically opposes an AVO and the court is satisfied that there are no safety concerns.162 It has also been suggested that the circumstances where a court must make an AVO should be expanded, including some judicial guidance on the type of behaviour that would give rise to a reasonable apprehension of violence.163 Written reasons should also be required in these circumstances.164
Procedure
7.75 It is recognised that the normal rules of evidence should apply to a final hearing (unlike an interim hearing)165 but the court should have the discretion to dispense with strict evidentiary rules where the best interests of a child are at stake.166 It has also been suggested that Part 15A should contain a provision similar to s 10 of the Domestic Violence Act 1992 (NT) regarding cross examination of complainants by unrepresented defendants.167
Orders by consent
7.76 A court can make an AVO without being satisfied that the complainant has reasonable grounds to fear and in fact fears domestic or personal violence, if both parties consent to the making of the order. By consenting to the order, the defendant does not admit to any of the particulars of the complaint. Where the parties do consent, the court can only conduct a hearing if the order is a final order and it is in the interests of justice to do so.168
7.77 Both interim and final orders can be made by consent. The clerk of the court can make or extend an interim order where both parties consent.169 However, only the court can make a final order.170
7.78 Granting an AVO by consent is clearly expedient because the matter does not have to proceed to a final hearing. It also allows for immediate protection for the applicant because it does not need to be served on the defendant. However, the risks attached are that the parties may not have fully understood the consequences that follow and may agree to matters because of a lack of understanding. Lack of information for defendants has been raised in a number of telephone submissions made to the Commission. People claim they have consented to orders they did not fully understand, and have had insufficient information about the AVO process including procedures for applying for revocation and appeals. This would be a particularly crucial issue for people with an intellectual disability.171
7.79 There is also concern in the community that consenting to an order may result in adverse consequences for the parties in other proceedings. It has been reported to the Commission that some defendants are reluctant to consent to ADVOs because they feel it will adversely affect them in family law proceedings.172 While there may be little substance in this fear, it does nevertheless limit the likelihood of defendants consenting to orders. It has been suggested that the legislation should include a specific provision stating that consent without admissions does not having any bearing on family law matters.173
Should the clerk of the court be able to issue final AVOs by consent?
7.80 This is an issue that has received a mixed response. Some were opposed to authorising clerks of the court to issue final AVOs by consent174 as it could be seen as playing down the role of AVOs.175 A recent US research study indicates that judicial demeanour in dealing with such applicants can be an important factor in stressing the seriousness of the matter and in empowering the complainant.176 Also, Magistrates have an important role in making sure defendants give informed consent,177 and make the defendant aware of the serious consequences that can flow from a breach.178 The court room setting is also important as it is a place where the defendant is not in control.179 It has also been suggested that there may be a danger that defendants with an intellectual disability may be reluctant to disclose the nature of their disability, and agree to the order without fully understanding the terms. These risks would be better guarded against if the orders were made in court.180
7.81 Other submissions were in favour of clerks of the court issuing final AVOs by consent.181 The main advantage is said to be that it would get through the lists faster, reduce the applicant’s stress and the amount of time the applicant needs to spend at court.182 It would also provide the applicant with protection sooner.183 Clerks have other commensurate duties, are sufficiently well-trained184 and can fully explain the consequences to both parties.185 It would be particularly good for young defendants who may have to miss school to wait around for the court to determine the matter.186 It has been suggested that the applicant could be asked if he or she wants the matter to be heard in chambers.187 Another suggestion was that the clerk could issue the AVO in a courtroom to “avoid diminishing the seriousness of the matter”.188 It is also necessary to clarify that the orders have the same degree of seriousness as if made in the courtroom.189 Power to revoke orders should still rest with the Magistrate, as the possibility of coercion exists.190
7.82 The police claim that implementation of this proposal would represent a significant saving of police time in terms of providing representation and support to the applicants, and serving orders, while still maintaining current levels of protection afforded to victims of domestic violence. The police suggested further that the legislation ought to reflect the following:
- a requirement for the clerk to explain the order fully, in the same manner as Magistrates are currently required to explain the order;
- that where the complaint is brought by police, police have the opportunity to discuss with the clerk any particular orders within the AVOs that may be required by the applicant;
- that current arrangements regarding transfer of information between Local Courts and NSW Police about the order should be continued in the new arrangements.191
The Commission’s views
7.83 Final orders represent the culmination of many months, sometimes years of anxiety and abuse for applicants. They are a recognition by the courts that violence is unacceptable, that a person in need of protection must be afforded adequate protection and that the defendant will be committing a criminal offence if the order is breached. Given what it stands for, the duration of the order is of importance if it is to be of any value. The Commission is of the view that it is preferable for the duration of an AVO to be specified in each order, since the circumstances of each case will require different approaches.192 However, where the duration is not specified in the order itself, the legislation should continue to provide for a default duration. The Commission is satisfied that the default duration should be extended to 12 months to allow sufficient time for a matter to be resolved or reviewed without having to seek a variation soon after the order was made. In extending the default duration, the Commission has also been guided by the practice in other jurisdictions where the default period is always 12 months or more. It should be possible to extend an order at any time before it expires.
7.84 On the issue of the adequacy of the existing grounds, the Commission favours the current mixed test which requires reasonable grounds to fear and the applicant’s actual fear of the defendant.
7.85 An issue of concern is the reported failure of the court to make interim and final orders where the defendant has pleaded guilty or been found guilty of an offence. The Commission is of the view that the provision allowing the court to decline to make an order should be strengthened through training and education whereby the Magistrate is required to give reasons for not issuing an AVO in such circumstances.
7.86 With regard to clerks of the court being authorised to make final orders by consent, the Commission regards this as an expedient course in the interests of justice. In the Commission’s view all the arguments against this practice are mostly matters of perception. The Commission recognises that clerks currently do have commensurate duties and in any event this power will be subject to a right of review by the Magistrate. The provision will also state that the clerks must fully explain the order to the parties. In addition, it is expected that the clerks will be given adequate and regular training. The power to revoke an order will continue to rest with Magistrates only.
7.87 The Commission also agrees with the view that legislative clarification is required to confirm that no adverse inferences can be drawn against parties in other proceedings from the making of consent AVOs without admissions. It is hoped that this provision will encourage people who may be otherwise unwilling to agree to consent orders to do so.
RECOMMENDATION 28
The default duration for final AVOs should be extended from 6 months to 12 months and that it should be possible to lodge an application to extend a final AVO anytime before the order expires with the leave of court.
RECOMMENDATION 29
Clerks of Court should be authorised to issue final consent AVOs with a power to review by a Magistrate.
RECOMMENDATION 30
The legislation should provide that no adverse inferences can be drawn against the parties in any proceedings from consent AVOs without admission.
ANCILLARY PROPERTY RECOVERY ORDERS
7.88 The Commission has been informed that, in many cases, AVO applicants who have been victims of domestic violence, particularly women and children, are forced to leave their homes quickly, without having had a chance to collect their personal property. Sometimes the defendant denies the applicant access to the property as a means of getting the applicant to return home. This can result in the children being deprived of clothing, toys and school books. There appears to be no effective means of responding to this very real difficulty. One option may be to return with a police officer, or pursue civil or family court action, but this can be slow, expensive and ineffective.
7.89 The problems associated with recovering personal property may also affect the defendant where the defendant is excluded from the family home.
7.90 It has been suggested that where the court is considering an AVO application, or where there is an existing interim or final order (not a TIO), the court should have the power to make an ancillary property recovery order.193 Such an order may be made where:
(a) the applicant has recently left a residence where personal property is located; or
(b) the defendant has by order been excluded from such premises where personal property is located; or
(c) there are other circumstances in which the court thinks it is appropriate to do so.
7.91 The order would authorise a person (or nominee) to attend the specified premises to recover minor items of personal property required for that person’s (or children’s) immediate living (or means of income). There could be a schedule by way of guidance of the types of property which can be included – such as bedding, clothing, school books and utensils, toys, medicines, means of identity (pension card, drivers licence), and tools of trade.
7.92 The court could decline to make an order in respect of any particular item if it is satisfied that:
7.93 An example of the latter case could be if there were ongoing property proceedings in the Family Court. An order would not vest title of the property in any person, it would only give possession of personal property.
7.94 In order to assist with the enforcement of the order the court when making an order could request the police to attend (effectively to keep the peace). This would be endorsed on the order. The order would not give a right to force entry. Failure to comply with an order would not be an offence (for example, the property may no longer be in the premises) but the wilful obstruction of a person executing an order would be an offence.194
7.95 This suggestion by the Children’s Court Magistrate at Lidcombe Children’s Court is not designed to “create a jurisdiction by stealth” for the Local Court to intervene in family court property disputes, but is an attempt to address a “practical legal vacuum” which arises almost everyday and can give rise to significant hardship.195
The Commission’s views
7.96 The Commission agrees that refusing a person access to his or her personal property is unreasonable whether it affects the aggrieved person, the defendant or children. On the other hand, contact associated with recovering personal property may result in further violence, trauma or fear for one or both parties. The Commission is therefore of the view that where an AVO has been made, the court should be empowered to make an Ancillary Property Order and require the Police to attend where necessary to avoid a possible breach of the peace.
7.97 Before making an Ancillary Property Recovery Order, the court must be satisfied that the property in question belongs to the person applying for the order.
7.98 The order would be issued against the defendant or the applicant (as the case may be) and would prohibit any other person from interfering with the recovery of the property specified in the order.
FOOTNOTES
1. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 9 November 1982 at 2368.
2. “Telephone” includes radio, facsimile and any other communication device: Crimes Act s 562H(16).
3. Crimes Act s 562H(1).
4. Crimes Act s 562H(2).
5. Crimes Act s 562H(2A).
6. Crimes Act s 562H(2B).
7. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Hawkesbury Nepean Community Legal Centre, Submission; Law Society of NSW, Criminal Law Committee, Submission.
8. Mt Druitt and Area Community Legal Centre, Submission.
9. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Hawkesbury Nepean Community Legal Centre, Submission; Legal Aid NSW, Submission; Mt Druitt and Area Community Legal Centre, Submission.
10. Hawkesbury Nepean Community Legal Centre, Submission; South West Sydney Legal Centre, Submission; Manly Warringah Women’s Resource Centre, Submission.
11. AVLICC, Submission; NSW, Department for Women, Submission; Newcastle consultation.
12. NSW, Department for Women, Submission.
13. AVLICC, Submission; NSW, Department for Women, Submission.
14. Moree consultation.
15. NSW, Department for Women, Submission.
16. NSW, Department for Women, Submission.
17. NSW Police Service, Submission; Chamber Magistrates consultation; Newcastle consultation.
18. Consultation with Michael Drury (18 August 2003).
19. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Chief Magistrate, Local Court of NSW, Submission.
20. Law Society of NSW, Criminal Law Committee, Submission.
21. AVLICC, Submission.
22. NSW Police Service, Submission.
23. NSW Police Service, Submission.
24. Mt Druitt and Area Community Legal Centre, Submission.
25. Crimes Act s 562H(9) and s 562H(9A).
26. AVLICC, Submission.
27. NSW, Department for Women, Submission.
28. Newcastle consultation; Wollongong consultation.
29. Newcastle consultation; Gosford consultation.
30. Elizabeth Leathbridge, Submission.
31. Elizabeth Leathbridge, Submission.
32. Crimes Act s 562H(2)(c).
33. Crimes Act s 562H(4).
34. Crimes Act s 562H(5)(d).
35. Crimes Act s 562H.
36. See Crimes Act s 562AE(3) and s 562AI(3).
37. Graham Johnson, Magistrate, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; NSW, Department of Women, Submission.
38. Law Society of NSW, Criminal Law Committee, Submission; Mt Druitt and Area Community Legal Centre, Submission.
39. NSW, Department for Women, Submission.
40. AVLICC, Submission.
41. Chief Magistrate, Local Court of NSW, Submission.
42. Chief Magistrate, Local Court of NSW, Submission.
43. This provision already exists in relation to interim AVOs under s 562BF, but clarification in s 562H that it also applies to TIOs would be beneficial.
44. This recommendation is consistent with a recommendation that is being made by the Ministerial Inquiry for the Minister for Police dealing with Police Investigations and Processes being conducted by former police officer Michael Drury.
45. Crimes Act s 562BB(1A)-(3), s 562I(2).
46. Crimes Act s 562BB(4).
47. Crimes Act s 562BB(6).
48. Crimes Act s 562BB(1).
49. Protection Orders Act 2001 (ACT).
50. Domestic and Family Violence Protection Act 1989 (Qld).
51. Crimes (Family Violence) Act 1987 (Vic) s 8(1).
52. Justices Act 1959 (Tas) s 106D.
53. Restraining Orders Act 1997 (WA) s 11.
54. AVLICC, Submission; NSW, Department for Women, Submission.
55. AVLICC, Submission; Chamber Magistrates consultation.
56. AVLICC, Submission.
57. NSW, Department for Women, Submission.
58. NSW, Department for Women, Submission.
59. NSW, Department for Women, Submission.
60. Blue Mountains Community Legal Centre, Submission; Law Society of NSW, Criminal Law Committee, Submission.
61. Blue Mountains Community Legal Centre, Submission; Hawkesbury Nepean Community Legal Centre, Submission.
62. Mt Druitt and Area Community Legal Centre, Submission.
63. Chief Magistrate, Local Court of NSW, Submission.
64. Erin’s Place for Women and Children, Submission.
65. Erin’s Place for Women and Children, Submission.
66. Erin’s Place for Women and Children, Submission.
67. Law Society of NSW, Criminal Law Committee, Submission.
68. Smart v Johnston (NSW Supreme Court, No 12228/1998, Dunford J, 8 October 1998, unreported).
69. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Chamber Magistrates consultation.
70. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
71. Chief Magistrate, Local Court of NSW, Submission; Correspondence between Jillian Orchiston, Magistrate, Central Local Courts, and Peter Hennessy, Executive Director, Law Reform Commission (3 July 2002).
72. In the Marriage of C (1995) 128 FLR 100.
73. Chief Magistrate, Local Court of NSW, Submission; Newcastle consultation.
74. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
75. That is, the defendant must not contact, stalk, harass, etc, the applicant.
76. Wollongong consultation.
77. Erin’s Place for Women and Children, Submission.
78. Erin’s Place for Women and Children, Submission.
79. Children’s Magistrate, Lidcombe Children’s Court, Submission.
80. Children’s Magistrate, Lidcombe Children’s Court, Submission.
81. Children’s Magistrate, Lidcombe Children’s Court, Submission.
82. Crimes Act s 562E(4).
83. Protection Orders Act 2001 (ACT) s 52, s 54, s 58 and s 59.
84. Justices Act 1959 (Tas) s 106D(2).
85. Restraining Orders Act 1997 (WA) s 16(2).
86. Domestic Violence Act 1995 (NZ).
87. AVLICC, Submission; NSW, Department for Women, Submission.
88. NSW, Department for Women, Submission.
89. AVLICC, Submission.
90. AVLICC, Submission.
91. NSW, Department for Women, Submission.
92. Manly Warringah Women’s Resource Centre, Submission.
93. Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation.
94. Blue Mountains Community Legal Centre, Submission; Chief Magistrate, Local Court of NSW, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Graham Johnson, Magistrate, Submission; University of Newcastle Legal Centre, Submission; Local Court NSW, Submission; Jane Wangmann, Submission; Mt Druitt and Area Community Legal Centre, Submission; NSW Police Service, Submission.
95. Blue Mountains Community Legal Centre, Submission.
96. Julie Stubbs, Submission.
97. NSW Police Service, Submission.
98. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
99. Chief Magistrate, Local Court of NSW, Submission.
100. Chief Magistrate, Local Court of NSW, Submission.
101. Chief Magistrate, Local Court of NSW, Submission.
102. Chief Magistrate, Local Court of NSW, Submission.
103. Jane Wangmann, Submission.
104. AVLICC, Submission; NSW Police Service, Submission; Blue Mountains Community Legal Centre, Submission; Hawkesbury Nepean Community Legal Centre, Submission; Legal Aid NSW, Submission.
105. Moree consultation.
106. AVLICC, Submission; South West Sydney Legal Centre, Submission; Hawkesbury Nepean Community Legal Centre, Submission.
107. Mt Druitt and Area Community Legal Centre, Submission.
108. Hawkesbury Nepean Community Legal Centre, Submission; Blue Mountains Community Legal Centre, Submission.
109. NSW Police Service, Submission.
110. NSW Police Service, Submission.
111. Chief Magistrate, Local Court of NSW, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; University of Newcastle Legal Centre, Submission.
112. Chief Magistrate, Local Court of NSW, Submission.
113. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
114. Julie Stubbs, Submission.
115. AVLICC, Submission; Chamber Magistrates consultation; Newcastle consultation.
116. AVLICC, Submission; Local Court NSW, Submission; Chamber Magistrates consultation; Newcastle consultation.
117. Local Court NSW, Submission.
118. AVLICC, Submission.
119. Local Court NSW, Submission.
120. See Recommendation 52. The Commission understands that this proposal is being endorsed and recommended by the Ministerial Inquiry into Police Processes (2003) being conducted by Michael Drury.
121. See Recommendation 52.
122. Crimes Act s 562E(1)-562E(3).
123. Protection Orders Act 2001 (ACT) s 35, s 36.
124. Domestic Violence Act 1992 (NT) s 4(1A).
125. Domestic and Family Violence Protection Act 1989 (Qld) s 34.
126. Justices Act 1959 (Tas) s 106B(6).
127. Crimes (Family Violence) Act 1987 (Vic) s 6.
128. Restraining Orders Act 1997 (WA) s 16 and s 37.
129. Chief Magistrate, Local Court of NSW, Submission.
130. University of Newcastle Legal Centre, Submission.
131. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Graham Johnson, Magistrate, Submission; Jane Wangmann, Submission.
132. Jane Wangmann, Submission.
133. AVLICC, Submission; NSW, Department for Women, Submission; Hawkesbury Nepean Community Legal Centre, Submission.
134. Law Society of NSW, Criminal Law Committee, Submission.
135. AVLICC, Submission.
136. Hawkesbury Nepean Community Legal Centre, Submission.
137. Auditor General for Western Australia, A measure of protection: management and effectiveness of restraining orders (Report No 5, October 2002) at 20. See also “Rape victim seeks permanent restraint” West Australian (Wednesday, 15 January 2003) at 33.
138. Crimes Act s 562F(8).
139. Moree consultation.
140. Gosford consultation.
141. Crimes Act s 562AE(1) and s 562AI(1).
142. Wallin v Tiernan [1999] NSWCA 353.
143. Crimes Act s 562AE(3) and s 562AI(3).
144. Domestic Violence Act 1994 (SA) s 6.
145. Protection Orders Act 2001 (ACT) s 40.
146. Domestic and Family Violence Protection Act 1989 (Qld) s 20. Similar provisions apply in Tasmania: Justices Act 1959 (Tas) s 106B(1); and Victoria: Crimes (Family Violence) Act 1987 (Vic) s 4.
147. Restraining Orders Act 1997 (WA) s 11. A similar mixed test also applies in the Northern Territory: Domestic Violence Act 1992 (NT) s 4.
148. R Hunter and J Stubbs, “Model laws or missed opportunity? Recent proposals concerning domestic violence law reform” (1999) 24(1) Alternative Law Journal 12.
149. Domestic Violence Legislation Working Group, Model domestic violence laws (Report, 1999) at 65.
150. AVLICC, Submission; Chief Magistrate, Local Court of NSW, Submission; NSW, Department for Women, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Graham Johnson, Magistrate, Submission; Law Society of NSW, Criminal Law Committee, Submission; Legal Aid NSW, Submission; Jane Wangmann, Submission.
151. Jane Wangmann, Submission.
152. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
153. Jane Wangmann, Submission.
154. Such a provision is found in the New Zealand legislation: Domestic Violence Act 1995 (NZ) s 14(5).
155. Domestic Violence Act 1995 (NZ) s 14(5); Jane Wangmann, Submission.
156. NSW Police Service, Submission.
157. NSW Police Service, Submission.
158. See Recommendation 52. The Commission also understands that this proposal is being endorsed and recommended by the Ministerial Inquiry into Police Processes (2003) being conducted by Michael Drury.
159. Blue Mountains Community Legal Centre, Submission.
160. Blue Mountains Community Legal Centre, Submission.
161. Blue Mountains Community Legal Centre, Submission.
162. Blue Mountains Community Legal Centre, Submission.
163. Hawkesbury Nepean Community Legal Centre, Submission.
164. Blue Mountains Community Legal Centre, Submission.
165. Children’s Magistrate, Lidcombe Children’s Court, Submission. See para 7.32-7.38.
166. Children’s Magistrate, Lidcombe Children’s Court, Submission.
167. Jane Wangmann, Submission.
168. Crimes Act s 562BA.
169. Crimes Act s 562BBA and s 562BBB.
170. Crimes Act s 562BA.
171. Intellectual Disability Rights Service Inc, Submission.
172. Graham Johnson, Magistrate, Submission.
173. Graham Johnson, Magistrate, Submission.
174. Chief Magistrate, Local Court of NSW, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Hawkesbury Nepean Community Legal Centre, Submission; Intellectual Disability Rights Service Inc, Submission; Law Society of NSW, Criminal Law Committee, Submission; Jane Wangmann, Submission; Redfern Legal Centre, Submission; Campbelltown Benevolent Society Domestic Violence Unit, Consultation; Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation.
175. Chief Magistrate, Local Court of NSW, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Jane Wangmann, Submission; Julie Stubbs, Submission.
176. Julie Stubbs, Submission referring to J Otacek, Battered women in the court room: the power of judicial responses (Northeastern University Press, 1999).
177. Chief Magistrate, Local Court of NSW, Submission; Law Society of NSW, Criminal Law Committee, Submission.
178. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Hawkesbury Nepean Community Legal Centre, Submission; Law Society of NSW, Criminal Law Committee, Submission; South West Sydney Legal Centre, Submission.
179. Hawkesbury Nepean Community Legal Centre, Submission.
180. Intellectual Disability Rights Service Inc, Submission.
181. Blue Mountains Community Legal Centre, Submission; Graham Johnson, Magistrate, Submission; Local Court NSW, Submission; Newcastle consultation; Wollongong consultation; Manly Warringah Women’s Resource Centre, Submission; NSW Police Service, Submission; Orange consultation.
182. Blue Mountains Community Legal Centre, Submission; Local Court NSW, Submission.
183. Blue Mountains Community Legal Centre, Submission.
184. Graham Johnson, Magistrate, Submission.
185. Blue Mountains Community Legal Centre, Submission.
186. Newcastle consultation.
187. Newcastle consultation.
188. NSW, Department for Women, Submission.
189. Wollongong consultation.
190. Local Court NSW, Submission.
191. NSW Police Service, Submission.
192. This leaves the court with the discretion to grant an AVO for a short or lengthy duration, depending on the need in each case.
193. Children’s Magistrate, Lidcombe Children’s Court, Submission.
194. Children’s Magistrate, Lidcombe Children’s Court, Submission.
195. Children’s Magistrate, Lidcombe Children’s Court, Submission.
