11.1 This chapter considers a range of miscellaneous issues that are of a procedural nature.
CROSS APPLICATIONS
11.2 A cross application occurs where the defendant in an AVO proceeding makes a complaint against the applicant. A cross application, may be genuine where both parties fear each other, where there is no power imbalance between the parties. In such circumstances, the conflict may be better resolved by mediation.
11.3 However, cross applications may also be made by a defendant who has no real cause for fear but who is intent on intimidating the victim or for other tactical reasons. This can undermine any beneficial effect the initial AVO application may have had.
11.4 Cross applications made in such circumstances are a cause for concern as they amount to an abuse of the AVO system. Another concern is that two parties may use different police stations resulting in police making applications on behalf of each party where they are unaware of the other party’s application.
11.5 There is very little research done in Australia or overseas on the incidence and use of cross applications. However, the Commission has received many submissions that have addressed various aspects of this issue. One in particular suggests that there is an increasing array of cross applications initiated by the police on the basis that everyone must be treated “equally”.1
Views in submissions
11.6 One of the preliminary issues considered is how to determine whether a particular application is a cross application. Some cross applications are lodged at around the same time as, and listed together with, the initial application at court. Others are made months after the initial application, but may still be retaliatory. The difficulty in determining the authenticity of a cross application makes it harder to develop a legislative response.2
11.7 There appears no doubt that some cross applications are instituted as an abuse of process brought in direct retaliation of a complaint made.3 They are often brought as a way of coercing the applicant to withdraw.4 Vexatious cross applications cause a number of difficulties. For instance, police have a practice of making an application on behalf of whoever gets to them first (assuming the parties both go to the same station). If this is the perpetrator of the alleged violence, then the victim is blocked from having the police bring the action, or from having police prosecutors handle the hearing, and must make a private application through a Chamber Magistrate.5 A vexatious cross application can also compromise employment in child-care related fields.6
11.8 Unwarranted applications, including cross applications, together with vexatious appeals and repeated attempts to vary or revoke orders can amount to “legalised” harassment of the applicant, a continuing attempt by the defendant to exert power and control.7 Such behaviour should amount to breach of the original AVO, or be evidence of harassment to justify the granting of another order.8
11.9 Some have suggested that there should be a restriction on the right to apply for a cross-application.9 The Chief Magistrate suggests:
- using the existing discretion to refuse to issue process in APVO matters;
- using the existing provisions for costs;
- imposing filing fees for cross applications;
- using the court’s discretion to mandate mediation.10
11.10 It has also been suggested that prescribed forms could include trigger questions, such as whether the defendant has applied for an AVO against the applicant in the last 6 months.11 Alternatively, parties should be required to reveal if other orders are in place or have been sought. It is important that applications are carefully assessed to ensure that the applicant does in fact fear the other party.12
11.11 On the other hand, some submissions have expressed the view that not all cross applications are vexatious or involve an exploitation of power imbalances.13 The simple fact that a complaint is made first does not necessarily mean that it has more validity than a subsequent complaint.14 Sometimes, albeit uncommonly, the cross application has been made out, in contrast to the original application.15 Thus, cross applications should not be prevented by legislation.16
11.12 Submissions noted the difficulty in legislating to prevent unwarranted cross applications,17 especially where they are lodged at different courts.18 Restricting cross-applications could also have an adverse impact on access to AVOs when they are genuinely needed, since it needs to be remembered that not all cross applications are without foundation.19 As discussed earlier,20 this is an example where better use of technology to keep courts and police informed would be more effective than any legislative change.21
11.13 It must also be noted that the Legal Aid Commission has taken measures regarding cross applications. Prior to the amendments in 2002, the Legal Aid Commission’s policy on eligibility for legal aid for ADVO matters provided that aid was available for all applicants, but only available for defendants in exceptional circumstances. Under that policy, legal aid was available to a cross applicant as well as the original applicant, but only available to the original applicant to defend the cross application in exceptional circumstances. The view of Legal Aid staff was that these cross applications were generally without merit, and formed part of a pattern of intimidating and harassing behaviour. Conscious of the growing number of retaliatory applications, the Legal Aid Commission has now adopted a policy which grants aid to the original applicant for the application and to defend any cross application, but does not grant aid to the cross applicant, except in exceptional circumstances. Legal Aid expressed support for any measures which would reduce the number of unmeritorious cross applications which are brought simply to harass and intimidate the applicant further.22
11.14 With regard to ADVOs, it has been suggested that more education programs need to provide information to lawyers, magistrates, police and domestic violence workers about the nature and incidence of cross applications, how they impact on victims of domestic violence, and how they tend to be resolved. Police should be educated not to apply on behalf of both parties due to the potential conflict of interest, and guidelines should be developed to assist police to determine who the person in need of protection is and who the perpetrator is.23
11.15 It has been also been suggested in a submission24 that the granting of mutual orders (that is, each party has an order against the other) is a good way of removing any perceived advantage an applicant may have in terms of other legal proceedings, while still providing protection. However, the submission states that research indicates that they are not beneficial and may provide victims with less protection. They may also:
- reinforce myths about domestic violence (for example, that it is a relationship issue; or “mutual” violence);
- fail to place responsibility on the perpetrator of the violence;
- reinforce notions that the victim is somehow to blame for the violence that she has experienced – or in someway provokes it;
- create difficulties in future legal proceedings – particularly in Family Law matters were both applicants now present as “victims”;
- create difficulties in enforcement – police may be unsure what to do when both parties allege a breach of their protection order against the other, resulting in police either taking no action or arresting both parties.25
11.16 In the USA and in New Zealand the laws providing for protection orders contain a presumption against the making of mutual protection orders as one outcome of a cross application. For example the Domestic Violence Act 1995 (NZ) provides:
Where the court grants an application for a protection order, it must not also make a protection order in favour of the respondent unless the respondent has made an application for a protection order and the Court has determined that application in accordance with this Act.26
It has been suggested that a provision of this kind should be adopted in New South Wales.27
11.17 There is similar concern about the making of mutual interim orders when there are cross applications. In some courts there is a practice of granting both parties interim orders as a measure to “keep the peace” or be seen to be treating each party equally.28 While some parties consent to each other’s interim order, this practice would appear not to satisfy the “necessary or appropriate test” in the light of the objectives of the legislation.29
The Commission’s views
11.18 In the Commission’s view, cross applications do present problems when they are made to retaliate against or intimidate the other party. While this is clearly a form of abuse of the AVO system, the Commission is mindful of the undesirability of limiting general access to the AVO system by attempting to restrict unwarranted cross applications. Indeed the Commission is of the view that the controls imposed on making cross applications should be no different or stricter than those imposed on all other applications.
11.19 Currently, costs are one method of preventing unwarranted cross applications. However, many disputes involve conduct by both parties and, therefore, cross applications can be beneficial as they could lead to mutual compliance.
11.20 Another possibility would be to introduce general disclosure provisions on the Summons as in family and children’s matters. If the defendant is required to make a response then that may reduce the need for cross applications because the defendant would have had an opportunity to state his or her case. Including trigger questions on prescribed court forms will, in the Commission’s view, be one solution to the problem.
11.21 The Commission is also satisfied that this is an area that calls for more education and information as well as better technology to keep courts and the police informed of all applications made by parties. Police and courts can be kept informed of cross applications if they use central databases, and in much the same way as ‘criminal record’ evidence is adduced. However, the Commission believes that only those AVOs or complaints directly between the parties should be referred to. No evidence of AVOs or complaints involving third parties should be adduced by this process, as that would infringe human rights and the presumption of innocence.30
RECOMMENDATION 46
Court forms should be drafted to include relevant questions to determine if the applicant is, or has been, a defendant to AVO proceedings between the same parties.
SUBSEQUENT APPLICATIONS
11.22 Where an application for an AVO has been withdrawn or dismissed, the person seeking protection can initiate new proceedings either in the same or in a different court. There is no provision to stop people from making such subsequent applications. When an application has been dismissed after a hearing and the circumstances have not changed, further applications should not be permitted.
Views in submissions
Should the right to reapply be limited where the application has been dismissed but the circumstances have not changed?
11.23 Many submissions expressed the view that there should be a limitation as it would otherwise be a form of “double jeopardy”.31 This limitation should be expressly stated by making provision for Clerks of the Court or Chamber Magistrates not to accept applications where circumstances have not changed.32 Although there is support for limiting the right to reapply that should only be the case where an application has been dismissed after hearing and the circumstances have not changed.33
11.24 Subsequent applications with a series of dismissals are rare but not unknown. Parties should be required to seek leave of the court, and satisfy the court that there is a new circumstance justifying a further complaint against the same defendant within a specified time, for example, 6 months. This would be similar to the limitations placed on applications for variation or revocation where there must be a change of circumstances if the court is to proceed with the application.34
11.25 The Chief Magistrate also suggests precluding further application by a party who has defaulted on a prior costs order, unless special circumstances exist.35
11.26 However, police officers have reported that some applications are dismissed because the applicant has not attended court. In some cases, the applicant may have good reason not to be present, and the police or applicants’ advocate may not be aware of those good reasons. Where there has been no hearing and the application is dismissed, applicants should retain the right to reapply.36
11.27 There are other submissions that express the view that no such limitation should apply.37 They consider it inappropriate to limit applications given that the object of an ADVO is to prevent violence. The rules concerning vexatious litigants should be used to deal with the problems that arise.38 Also, victims suffering from low esteem may appear unsure resulting in a failed attempt to obtain an AVO. The legal system must remain open to such victims if they feel able to seek assistance in the future to return to court and not be condemned for the previous attempt.39
11.28 While it appears reasonable to propose a restriction on the right to re-apply for an order where an application has already been dismissed and there are no new circumstances, this would not be reasonable if the application had been dismissed solely because the person had not been able to persuade the Magistrate that they needed the order. An application may be dismissed because the applicant does not present her or his case fully, again as a result of intimidation or coercion.40 Part 15A is beneficial legislation which is designed to benefit a class of persons who face barriers in accessing the protection of the legislation.41 A victim in this situation should not be barred from receiving the protection of an ADVO because he or she failed on an earlier occasion.42
11.29 If subsequent applications are frivolous, the defendant can always seek costs.43 It is vitally important that access to AVOs is not reduced.44 For example, a person from a non English speaking background with a disability may not know about the need to provide evidence from witnesses, or other procedural issues, for instance, or may not have the English language skills to understand the proceedings fully or to explain their circumstances. If the person managed to get assistance to present their case at a later stage, it would not be reasonable to preclude them from making a fresh application, even though their circumstances had not changed.45
11.30 Others have suggested that the problems of subsequent applications call for better technology to keep courts and police informed rather than legislative change.46
The Commission’s views
11.31 Technically, it would seem appropriate that subsequent applications should not be entertained where there are no new grounds. However, there are many reasons why an application may be dismissed. It is, therefore, important that the court is not precluded from hearing subsequent applications merely on the basis that a previous application was dismissed and no new grounds exist. Clearly, a case by case assessment is required. The Commission suggests that the court must not dismiss a subsequent application on the face of it, but rather should be satisfied that there are no new grounds. New grounds may not only arise from a change of circumstances but other circumstances that justify a rehearing, such as earlier lack of understanding or lack of capacity to express the circumstances without fear. As in the case of cross applications, asking trigger questions may assist in ascertaining the appropriateness of entertaining the application.
EVIDENCE
Sworn complaint instead of affidavit
11.32 Section 562BB provides that where a person is unable for any good reason to be present in court during proceedings for an interim order, evidence can be provided by affidavit. However, it appears that this provision is rarely used, primarily because the preparation of an affidavit usually requires the skills of a solicitor. It has been suggested that rather than require an affidavit, it should be sufficient for the sworn complaint to be relied on without attendance by the applicant being necessary. Alternatively a police statement should be sufficient.47
Children’s evidence
11.33 Section 562NA provides that in all AVO proceedings that relate to an order for the protection of a child under the age of 16 years, there is a general presumption against proceedings being heard in public.48 Where such proceedings are heard in public, the court can direct any person other than persons who are directly involved in the proceedings to leave the place where the proceedings are being heard during the examination of witnesses.49
11.34 The section also provides for children to give evidence in limited circumstances at the discretion of the court. Section 562NA(3) states that in all AVO proceedings, a child “should not be required to give direct evidence about a matter unless the court is of the opinion that in the absence of the child’s evidence insufficient evidence about the matter will be adduced”. This section applies to all children who are called to give evidence, regardless of whether the child gives evidence in the capacity of a defendant or a protected person to an order, or as a witness to grounds that give rise to the making, variation or revocation of an AVO.
11.35 Current law provides that all children who are called as witnesses in proceedings in relation to a complaint for an AVO should give their evidence in accordance with Part 4 of the Evidence (Children) Act 1997 (NSW).50 Among other things, Part 4 provides that children must give their evidence by means of CCTV or similar technology unless the court is satisfied that it is not in the interests of justice for the child’s evidence to be given by such means or the urgency of the matter makes their use inappropriate.51 In the event that CCTV facilities are unavailable, children have a right to alternative arrangements that restrict contact (including visual contact) between the child and any other person by the use of screens and planned seating arrangements.52
11.36 Anecdotal information from local courts suggests that children are increasingly being called to give evidence and to be cross-examined. Notwithstanding the protections provided by the Evidence (Children) Act 1997 (NSW), it is questionable whether these rules of evidence are in fact being applied to young witnesses in AVO proceedings. Children who are already traumatised by physical, sexual or psychological abuse may be exposed to further stress by having to give evidence about matters that most likely involve either or both of their parents. This outcome would appear to be contrary to the spirit of the legislation and harmful to the safety and well being of the very children the AVO regime is meant to protect and assist.
Views expressed in submissions
11.37 Many submissions have commented on this issue. It has been suggested that reforms should institute a total prohibition against children giving evidence in proceedings under Part 15A.53 It has also been suggested that the court should be given a discretion to dispense with the rules of evidence when children are involved in AVO proceedings,54 and, more specifically, that consideration ought to be given to the enactment of a provision that excludes the application of the rule against hearsay in such proceedings.55 Other submissions, while acknowledging that s 562NA in its current form provides the court with some mechanisms to protect children who give evidence in AVO proceedings, reiterated that the safety and well being of children should be a paramount concern, and so suggested an additional safeguard that all proceedings involving children should be held in closed court.56
The Commission’s views
11.38 The Commission is of the view that children who have been victims of or witnesses to violence should be spared the further trauma of giving evidence regarding that violence wherever possible. In keeping with the provisions of the Family Law Act 1975 (Cth) and the Evidence (Children) Act 1997 (NSW), the Commission believes that Part 15A should be amended to reflect the following:
- The court should have the power to close the court to the public in all AVO proceedings that involve children as witnesses or as protected persons. In the event that proceedings involving children are held in public, the court should have the power to direct any person, other than the parties to the proceedings, to leave the place where the proceedings are being heard during the examination of the witnesses.57
- Children should only be permitted to give evidence by affidavit or oral testimony in AVO proceedings by order of the court upon application by any party to proceedings. There should be a presumption against the making of orders that such evidence be given and the court should exercise its discretion under this section by reference to the interests of justice.58
- The protections afforded by Part 4 of the Evidence (Children) Act 1997 (NSW) should be extended to apply to children who give evidence in proceedings regarding the variation and revocation of AVOs as well as those for the making of the order as currently provided.
- The perceived inadequacy of protections for children giving evidence in AVO proceedings largely appears to be an implementation issue. The Commission is of the view that explicit reference to the application of Part 4 of the Evidence (Children) Act 1997 (NSW) in s 562NA would assist.
RECOMMENDATION 49
Section 562NA should be amended to provide the following:
- subsection (1) should state that the section applies to all AVO proceedings that involve children either in the capacity of witnesses or protected persons.
- children should not give evidence in AVO proceedings, whether by way of oral testimony or sworn affidavit, unless the court orders otherwise in the interests of justice.
- children’s evidence given under this section should be given in accordance with Part 4 of Evidence (Children) Act 1997 (NSW).
RECOMMENDATION 50
Consequential amendments should be made to the Evidence (Children) Act 1997 (NSW) (section 17(b)) to state that Part 4 of the Act applies to all proceedings in relation to AVOs.
SERVICE OF AN AVO
11.39 A number of different documents may be generated during the AVO process which must be served on the defendant (and, in some cases, on the applicant). The four major respects in which service of documents is relevant to AVOs are:
- service of a summons initiating AVO proceedings and requiring a defendant to appear before the court;
- service of a copy of the actual AVO when such an order is granted, varied or revoked by the court;
- service of notice of an application to vary or revoke an AVO; and
- service of a TIO.
11.40 Only some aspects of service are governed by Part 15A. For example, in relation to service of a notice of an application to vary or revoke an AVO, Part 15A provides that such variation or revocation will not have effect until a notice of the application is served on the other party.59 The notice must be served personally on the other party, or in such other manner as the court directs.60 So far as the summons initiating the AVO procedure is concerned, Part 15A states that where the court is satisfied, by evidence on oath or affidavit, that the summons cannot reasonably be served on the defendant as provided by law, service may be conducted in any manner the court directs.61
11.41 The procedure for service of an AVO summons is not governed by Part 15A, but by the general Rules relating to Local Court criminal proceedings.62 Those Rules provide that service may be effected by handing a copy of the summons to either the defendant, or to a person at the defendant’s usual place of residence or business who is apparently of or above the age of 16 years.63 If, on tender of the summons to a person, the person refuses to accept it, the summons may be served by putting it down in the person’s presence after the person has been told of the nature of the notice. If the defendant fails to respond to the summons and does not attend court, an interim AVO may be made in his or her absence.64
11.42 The Commission considers the provisions of Part 15A relating to service of a summons to be adequate. Since the procedural aspects of service are not governed by Part 15A, they are not within the scope of this review. The provisions regarding variation and revocation of AVOs, including service of an application to revoke or vary, are discussed in Chapter 9.65
11.43 This section is primarily concerned with service on a defendant of a copy of an AVO, or the variation or revocation of an order after it has been made by the court.66 The relevant provision is s 562J. Service of an AVO is one of the most crucial elements in the effectiveness or otherwise of an order, since an applicant will not be afforded any protection under the order, and defendants cannot be charged with contravention of an AVO, unless the order has been properly served.
11.44 When making, varying or revoking an AVO, a copy must be served on the defendant before the AVO will have any effect. If the defendant is present in court when the order is made, it can be served on him or her personally at that time,67 or a copy of the order may be sent by post to the defendant or such other person as the clerk of the court thinks fit.68 If the order is made ex parte, the clerk of the court must arrange for a copy of the AVO to be served on the defendant personally by a police officer, or such other person as the clerk thinks fit.69 Section 562J further provides that service of a copy of the order may be effected in such other manner “as the court directs”.70 AVOs are usually served on defendants by police or another person, either by delivering it personally, or, if the defendant cannot be conveniently located, by leaving it with someone else at the defendant’s last or most usual place of residence.71
11.45 This provision can be contrasted with that pertaining to service of a copy of a TIO on a defendant. In relation to TIOs, a copy of the order is required to be served personally on the defendant by a police officer as soon as practicable after it is made.72 However, police have additional powers of arrest and detention under Part 15A for the purpose of serving the TIO on the defendant. When applying for a TIO, police are empowered to direct a defendant to remain at the scene of the incident, and, if they refuse, police may arrest and detain the defendant at the scene, or may take the defendant to a police station until the order is made and served.73
11.46 In DP 45, the Commission asked whether the current provisions in s 562J for effecting service of an AVO, or the variation or revocation of such an order, are adequate.
Views in submissions
Problems with serving AVOs
11.47 Failure to serve AVOs on a defendant emerged in submissions and consultations as one of the major issues hampering the effectiveness of AVOs. The following three main problems with service were identified:
1. defendants avoiding attempts at service;
2. delays in affecting service caused by administrative, procedural or perceived attitudinal problems within the police service or the court system; and
3. insufficient or inadequate police powers to carry out service effectively.
11.48 Service of interim orders and final orders remains problematic and time consuming for NSW Police, representing a considerable workload. Police informed the Commission that while people other than police may serve an AVO, in practice, police continue to serve the majority of AVOs.74 Obviously, where a defendant cannot be located, it makes the task of serving an AVO more challenging. Often, defendants have moved from their last known address, and the police are unable to find them.75 The police also told the Commission that some defendants often go to great lengths to avoid service.76
11.49 The view was expressed in submissions and consultations that there were extensive delays in effecting service.77 The common perception is that police take too long to serve an AVO,78 and that it is not considered a significant enough police priority. Redfern Legal Centre reported that they have found that it is not uncommon for many weeks or even months to pass before service is effected.79 The Commission also heard that there are administrative problems in court registries that affect service. For example, orders can take some time to be forwarded to the appropriate police station.80 It also appears to be difficult to ascertain whether service has occurred.81
11.50 Apart from criticism concerning delays in serving AVOs, some submissions conveyed criticism of police efforts to effect service. After an initial failed attempt to serve, there is a reported unwillingness on behalf of some police to pursue other methods of service.82 It was asserted that orders for substituted service are not being sought by police.83 Other submissions noted that it is also sometimes difficult and time consuming to obtain alternative service orders.84 A sworn statement must be made as to prior attempts at service,85 and some Magistrates require the applicant to attend court several times or ask for some evidence of evasion on behalf of the defendant.86 Nor are warrants for the arrest of the defendant used much as an alternative.87
11.51 An issue raised by police in several consultations is their lack of powers to assist them to effect service properly. For example, police cannot ask for identification evidence from a defendant. Consequently, where an attempt at service is made and the defendant claims to be someone else, police cannot demand that the defendant produce identification. Nor do police have the power to arrest and detain a person for the purpose of serving an interim or final AVO as they do with a TIO.88
Suggestions in submissions
11.52 Service needs to be treated as a priority by police and courts,89 with more resources being devoted to ensure service is prompt and effective.90 A strong view was expressed that the procedures for effecting service should be made clearer and more flexible. For example, there should be one attempt at serving ex parte orders personally on a defendant, then it should be sufficient to serve by registered post to the last known address of the defendant,91 or to the defendant’s workplace or home of a family member.92 Other means of serving AVOs, such as through Centrelink, were also suggested.93 Where a defendant is not present in court but is represented by a solicitor, service on the solicitor should be deemed sufficient.94 In relation to service on Aboriginal defendants living in rural areas, it was suggested that authorised Aboriginal Liaison Officers or DVLOs may be useful in finding the defendants and explaining the orders to them.95
11.53 The view was also expressed that Part 15A should give further guidance to the court on the circumstances when substituted service would be appropriate.96 For example, the legislation could provide that an order for substituted service may be made if the applicant can provide information to the court about attempted service by the police if the police are not available to provide this evidence.97
11.54 Some submissions also asserted the need to consider the defendant’s perspective. While the failure to serve orders can lead to problems for the protected person, the fundamental principles of law should not be overlooked, and without proof of service or attendance in court when orders are made, a defendant should not be held liable for breach.98 Where the defendant is a person with a disability from a non-English speaking background, service should be carried out so that the person understands either what the documents mean or where they can get assistance to understand what they mean, for example, through interpreter assistance.99
11.55 A number of submissions expressed the view that police should be given more power under Part 15A to arrest and detain defendants for the purpose of serving interim and final AVOs, similar to the powers in relation to service of TIOs.100 Police say it is frustrating when a defendant fails to appear at a hearing, so the order cannot be served at that time, and then the officer sees the defendant later that day but does not have a copy of the order with which to serve the defendant. There is currently no power to arrest the defendant for the purpose of taking him or her back to the police station to serve the order.101 Greater use of warrants was also suggested to the Commission.102
11.56 Another view expressed in submissions was that a statutory time limit for service should be imposed. If that time limit is not met, police must show reasonable cause for non-service, and substituted service must be applied for.103 A time limit of 48 hours was suggested.
The Commission’s views
11.57 Failure to serve an AVO has significant consequences the most serious of which is that the orders never take effect, leaving the applicant vulnerable and without protection. As such, it undermines the whole AVO process. If the defendant knows about the failed attempts at service it may also aggravate the violence and give the impression that the behaviour is being condoned. Failure to serve an AVO can also contribute to the feelings of disempowerment of the applicant. The Commission has heard reports of many hearings having to be adjourned due to the failure to serve,104 forcing the applicant to keep returning to court. Ironically, this often happens in the most serious cases of violence and abuse, making it harder to enforce AVOs in these cases.105
11.58 The priority given by police and the courts to serving AVOs and applying for and granting orders of substituted service is largely an implementation issue, and as such is discussed in Chapter 3. However, some legislative change may be made to improve the effectiveness of serving an AVO in circumstances where the defendant is not present in court. The Commission is of the view that the best practice is for every effort to be made to locate the defendant in order to serve a copy of the order on him or her personally. Service effected in this manner makes it clear that the applicant has the protection of the AVO, and removes the capacity for the defendant to claim that he or she had no knowledge of the AVO in order to avoid prosecution for breaching the order. Serving an order personally may also help to ensure that the defendant understands the nature and seriousness of the AVO. This would be particularly beneficial in cases where the defendant is from a non-English speaking background or has a disability.
11.59 However, there will be situations where the defendant cannot reasonably be located. In that case, the court should be able to direct that an alternative means of service be carried out. The alternative means could include those set out in the Local Courts (Criminal and Applications Procedure) Rule 2003 (NSW). A direction for substituted service should only be made where attempts to effect personal service have failed. Until the court makes such a direction, the police should remain under an obligation to serve the AVO personally. If the court considers it to be appropriate, a time period for effecting personal service may be specified, after which an application for substituted service must be made.
11.60 There will also be situations where police are able to locate the defendant at a time when they do not have a copy of the order with them and so are unable to serve it on the defendant. In the latter situation, the Commission recommends that police should be given a limited power under s 562J to arrest and detain the defendant for the purpose of serving an AVO. That power should be limited to arrest and detention at the scene where the officer observes the defendant, or for taking the defendant to the nearest police station. It should only be used after all other reasonable attempts to serve the AVO have failed, or where the defendant refuses to accompany the police officer willingly. This would bring s 562J more into line with s 562H(8) concerning TIOs.
11.61 The Commission understands that the NSW Police are currently developing proposals for streamlining and improving service of a range of court documents. One such proposal is the development of a Field Court Notice Book which would be used to serve already existing, but unserved, court notices on a person of interest. When police come in contact with a person, they would do a background check and establish that the person in question has an unserved Court Notice. Police would then obtain relevant details via the radio, fill in a Notice using the Field Court Notice Book, and then serve this upon the person in question. Police would then update the computerised police database (“COPS”) stating that the person has been served.106 Should such a system be implemented, a defendant would only need to be detained for a few minutes.
RECOMMENDATION 51
Section 562J should be amended to provide that every reasonable attempt must be made to serve a copy of an AVO, or a variation of an AVO, personally on a defendant. The court should be able to direct that an alternative means of service may occur only after all reasonable attempts to serve the AVO personally on the defendant have failed.
RECOMMENDATION 52
Section 562J should grant a limited power to police to arrest and detain a defendant for the purpose of serving a copy of an interim or a final AVO, or a variation of an AVO, personally on that defendant. That power should only extend to arresting and detaining the defendant for the purpose of serving the order:
- at the place where the defendant happens to be when confronted by the police officer; or
- in order to take him or her to the nearest police station.
The power should also apply where the defendant refuses to remain at the scene referred to above or to accompany the officer to the nearest police station.
APPEALS
11.62 Section 562W and s 562WA deal with local court review and District Court appeals regarding AVOs.107
Local court review
11.63 If a local court makes an AVO ex parte, the defendant may apply to the court for a review of that decision by lodging a written application for an annulment of the order with a registrar of a local court.108 An application for review must be made within two years after the order is made,109 and can only be made once.110 A local court must grant an application for an annulment if it is satisfied the defendant was unaware of the original court proceedings until after the proceedings were completed, was otherwise hindered from taking part in the original proceedings by accident or misadventure, or it is in the interests of justice to do so.111
11.64 The granting of an annulment is significant because it has the effect of making the order void ab initio. Thus, upon annulment the AVO ceases to have effect and any enforcement action previously taken, such as restrictions like the prohibition on the possession of firearms, will be reversed.112 In contrast, a mere revocation of an AVO does not have such wide-ranging effects.
11.65 Where the court grants an annulment of an order, there is nothing to hinder the complainant from lodging another application for a new AVO. In such instances, the local court is to deal with the new application afresh, as if no order had been previously made.113
11.66 Although s 562WA(1) makes it clear that only defendants to an AVO can seek an annulment, the issue has been raised as to whether the right should be extended to the person whose complaint gave rise to the AVO.114 The situation contemplated is where a complainant, by reason of accident, misadventure, illness or such like fails to present at court for the hearing of the AVO proceedings. This failure to attend may mean that, in the opinion of the judicial officer, there is insufficient evidence to warrant the making of an AVO, resulting in an order dismissing the complaint. This would result in a new application for an AVO needing to be made.
District Court Appeals
11.67 The defendant to an AVO can appeal as of right to the District Court against the making of an AVO.115 If the order was made by consent, the defendant can only appeal by leave of the court.116 An AVO applicant whose complaint is dismissed by the court also has a right of appeal against that decision in the District Court.117 In all cases, the person has 28 days to lodge the appeal.118
Procedure for hearing appeals
11.68 Appeals are heard in accordance with Part 3 of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW).119 However, since an AVO appeal is treated as a “conviction or a sentence” for the purposes of Part 3, the procedure by which the appeals are heard is unclear. Whether an AVO is treated as a sentence or as a conviction under Part 3 has important procedural implications.
11.69 An appeal against sentence is held by way of re-hearing of evidence given in the local court or children’s court proceedings.120 The appellant may also give fresh evidence.121 An appeal against conviction, on the other hand, is by way of review of the transcripts of evidence from the original proceedings.122 In limited circumstances, fresh evidence may be given with leave of court.123 The court may also direct evidence to be given in person, but only if the order relates to an offence involving violence against that person and the court is satisfied that there are special reasons why, in the interests of justice, the person should be called;124 or in any other case, if there are substantial reasons why, in the interests of justice the person should give evidence.125
11.70 In appeals brought by AVO applicants, the District Court may, without further hearing admit into evidence any evidence that was admitted in the original proceedings.126 Further evidence can only be given with leave.127
11.71 Parties to an AVO may also appeal as of right against an order made by the local court or the children’s court varying or revoking an AVO or refusing to vary or revoke an AVO.128
Presumption against stay of operation of the order
11.72 The lodging of a notice of appeal under s 562WA is presumed not to have the effect of staying the operation of the order concerned.129 However, upon application by the defendant, the original court that made the order may decide to stay the operation of the order until the appeal is finally determined, if it is satisfied, having regard to the need to ensure the safety of the protected person or any other person, that it is safe to do so.130
Appeals against costs
11.73 Under the previous s 562WA, any party to AVO proceedings could appeal to the District Court against an order for costs.131 The new s 562WA does not provide for appeals of this nature. Although appeals against costs awarded in AVO proceedings were not lodged very often, they did occur and often involved large sums of money. Local Courts has raised the omission of this ground of appeal as a concern.132
Views in submissions
11.74 There were many submissions that expressed the view that the appeals process does not give rise to any problems.133 It was also suggested that few orders are appealed,134 possibly due to the large number of unrepresented parties.135
11.75 On the other hand, some have stated that the appeals process is confusing and complex. They suggest that a right of appeal should be available only after the matter has been heard on its merits. If the proceedings were anything short of a full hearing in the first instance, then there should be a re-hearing in the Local Court before going on appeal136
11.76 Currently, there is no provision for appeal to the District Court from the making or refusal of an interim order. This is considered appropriate.137 There is also a view that the applicant should have the right to appeal to the District Court against a Magistrate’s refusal to include conditions sought by the applicant in an AVO that is granted.138
The Commission’s views
11.77 The Commission is not convinced that the concern discussed above regarding the need to extend the right to seek an annulment to complainants warrants an amendment. The Commission is of the view that, in such circumstances, the applicant could just as simply lodge a new application for an AVO. Annulment of the order dismissing the person’s complaint would serve no useful purpose for the complainant given that, in any event, a new application for an AVO will have to be made.
11.78 The Commission has recommended that authorised third parties should be allowed to make139 and vary140 applications on behalf of people with an intellectual disability, people under Guardianship orders and people with certain physical disabilities. Consequential amendments should also be made to s 562WA to enable authorised third parties to bring an appeal and to s 562N to allow the court to award costs to authorised third parties.
11.79 With regard to appeals against costs, the Commission is of the view that, although anecdotal information suggests that few parties to AVOs bring an appeal solely on the basis of an award of costs, there is a possibility that some injustice may occur if there is no statutory provision. As such, the Commission recommends that a right to appeal on this basis should be inserted in s 562WA.
RECOMMENDATION 53
Section 562WA should be amended to:
(a) enable authorised third parties to bring an appeal; and
(b) provide a right to appeal against an award for costs.
RECOMMENDATION 54
Section 562N should be amended to allow the court to award costs to authorised third parties.
FOOTNOTES
1. Shoalcoast Community Legal Centre, Submission.
2. Jane Wangmann, Submission.
3. Chief Magistrate, Local Court of NSW, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Newcastle consultation; Wollongong consultation.
4. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
5. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
6. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
7. Hawkesbury Nepean Community Legal Centre, Submission.
8. Hawkesbury Nepean Community Legal Centre, Submission.
9. Blue Mountains Community Legal Centre, Submission.
10. Chief Magistrate, Local Court of NSW, Submission.
11. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Jane Wangmann, Submission.
12. Julie Stubbs, Submission.
13. Graham Johnson, Magistrate, Submission.
14. Jane Wangmann, Submission.
15. Graham Johnson, Magistrate, Submission.
16. Jane Wangmann, Submission.
17. Graham Johnson, Magistrate, Submission; Jane Wangmann, Submission.
18. Jane Wangmann, Submission.
19. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; South West Sydney Legal Centre, Submission; NSW Police Service, Submission.
20. See para 3.87.
21. NSW, Department for Women, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Wollongong consultation.
22. Legal Aid NSW, Submission.
23. Jane Wangmann, Submission.
24. Jane Wangmann, Submission.
25. Jane Wangmann, Submission.
26. Domestic Violence Act 1995 (NZ) s 18.
27. Jane Wangmann, Submission.
28. For example, see J Hickey and S Cumines, Apprehended Violence Orders: a survey of magistrates (Judicial Commission of NSW, Monograph Series 20, 1999) at 70, where in response to a hypothetical involving a cross application, while the majority of magistrates indicated that they would grant mutual interim orders provided they found that the fears of each party were reasonable, some magistrates made reference to preserving the status quo.
29. Jane Wangmann, Submission.
30. However, Police have indicated that to keep police and courts informed of cross applications would require a considerable scoping exercise to determine feasible options for recording of details of applications. It would not be possible to undertake this task without additional funding.
31. Law Society of NSW, Criminal Law Committee, Submission; Family Law Reform Association, Consultation; Western NSW Community Legal Centre, Submission.
32. Western NSW Community Legal Centre, Submission.
33. Law Society of NSW, Criminal Law Committee, Submission.
34. See Crimes Act s 562F(4A) and para 9.3-26.
35. Chief Magistrate, Local Court of NSW, Submission.
36. NSW Police Service, Submission; Orange consultation; Bourke consultation; Moree consultation.
37. AVLICC, Submission.
38. Julie Stubbs, Submission.
39. South West Sydney Legal Centre, Submission.
40. Legal Aid NSW, Submission.
41. Legal Aid NSW, Submission.
42. Legal Aid NSW, Submission.
43. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
44. Hawkesbury Nepean Community Legal Centre, Submission.
45. Multicultural Disability Advocacy Association, Submission.
46. NSW, Department for Women, Submission; Wollongong consultation.
47. Redfern Legal Centre, Submission.
48. Crimes Act s 562NA(1).
49. Crimes Act s 562NA(2).
50. Evidence (Children) Act 1997 (NSW) s 17.
51. Evidence (Children) Act 1997 (NSW) s 18.
52. Evidence (Children) Act 1997 (NSW) s 24.
53. NSW Department of Community Services, Submission.
54. Chief Magistrate, Local Court of NSW, Submission.
55. Newcastle consultation.
56. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
57. See FLA s 97(2) as a model.
58. See FLA s 100B as a model.
59. Crimes Act s 562F(5) and (6).
60. Crimes Act s 562F(7).
61. Crimes Act s 562AF(6) and s 562AJ(6).
62. Local Courts (Criminal and Applications Procedure) Rule 2003 (NSW). It is not clear whether the Rules apply to service of an application to vary or revoke an AVO. However, the Commission has been advised by Local Courts that court staff have been instructed to follow the same provisions as for service of the original summons.
63. Local Courts (Criminal and Applications Procedure) Rule 2003 (NSW) cl 6. The Rules also provide that if the defendant is an inmate of a correctional centre, service is effected by handing a copy of the summons to the officer in charge of the correctional centre, or by sending it by post or facsimile or other electronic communication to the officer in charge of the correctional centre.
64. Crimes Act s 562BB(2).
65. See para 9.3-9.26.
66. However, the comments made by the Commission relating to substituted service have application to any document served in AVO proceedings.
67. Crimes Act s 562J(2).
68. Crimes Act s 562J(2AA).
69. Crimes Act s 562J(2A).
70. Crimes Act s 562J(2B).
71. Local Court NSW, Submission.
72. Crimes Act s 562H(8).
73. Crimes Act s 562H(12).
74. NSW Police Service, Submission.
75. Moree consultation.
76. NSW Police Service, Submission.
77. Margrette Young, Submission.
78. Bourke consultation; Moree consultation; Orange consultation.
79. Redfern Legal Centre, Submission.
80. Redfern Legal Centre, Submission.
81. Redfern Legal Centre, Submission.
82. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Hawkesbury Nepean Community Legal Centre, Submission; Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation; Newcastle consultation.
83. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Hawkesbury Nepean Community Legal Centre, Submission; South West Sydney Legal Centre, Submission; Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation; Newcastle consultation.
84. South West Sydney Legal Centre, Submission.
85. Hawkesbury Nepean Community Legal Centre, Submission; Legal Aid NSW, Submission; Redfern Legal Centre, Submission; Wollongong consultation.
86. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
87. AVLICC, Submission.
88. NSW, Department for Women, Submission; Newcastle consultation; Wollongong consultation.
89. Jane Wangmann, Submission.
90. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
91. Blue Mountains Community Legal Centre, Submission; Wollongong consultation.
92. Blue Mountains Community Legal Centre, Submission; Orange consultation.
93. Orange consultation.
94. Redfern Legal Centre, Submission.
95. Orange consultation; Moree consultation.
96. Legal Aid NSW, Submission; South West Sydney Legal Centre, Submission.
97. Legal Aid NSW, Submission.
98. Mt Druitt and Area Community Legal Centre, Submission.
99. Multicultural Disability Advocacy Association, Submission.
100. Erin’s Place for Women and Children, Submission; NSW, Department for Women, Submission; Wollongong consultation.
101. Erin’s Place for Women and Children, Submission; Wollongong consultation.
102. Erin’s Place for Women and Children, Submission. Warrants are issued in less than 1% of AVO applications: unauthorised and unaudited figures provided by Local Courts to the Commission on a confidential basis.
103 Redfern Legal Centre, Submission; Moree consultation; Bourke consultation; Gosford consultation; Orange consultation.
104. Hawkesbury Nepean Community Legal Centre, Submission.
105. Newcastle consultation; Wollongong consultation.
106. NSW Police Service, Submission. 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.
107. Note that the provision was recently amended by the Justices Legislation Repeal and Amendment Act 2001 (NSW), which came into force on 7 July 2003.
108. Crimes Act s 562WA(1). The procedure for review follows that set out in Part 2 of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW).
109. Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 4(2)(a).
110. Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 4(3). However, the section provides that further applications for annulment in respect of the same matter may be made by leave of the court.
111. Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 8.
112. Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 10.
113. Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 9.
114. This concern has been raised directly with the Commission by an officer of Local Courts in a telephone conversation on 14 July 2003.
115. Crimes Act s 562WA(2).
116. Crimes Act s 562WA(3).
117. Crimes Act s 562W.
118. Crimes Act s 562W(2) and Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 11(2). Section 13(1) provides that an appeal can be brought outside the 28 day period in certain circumstances, such as in the interests of public policy: Stanton v Jordan (NSW, Supreme Court, No 13001/1997, Donovan AJ, 22 April 1998, unreported).
119. Crimes Act s 562WA(2) and s 562WA(3).
120. Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 17.
121. Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 17.
122. Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 18(1).
123. Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 19(1)(a).
124. Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 19(1)(b).
125. Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 18(2).
126. Crimes Act s 562W(3).
127. Crimes Act s 562W(4).
128. Crimes Act s 562WA(4).
129. Crimes Act s 562WB(1).
130. Crimes Act s 562B(2) and s 562B(3).
131. See Part 5A of the now repealed Justices Act 1902 (NSW) s 117 and s 120.
132. In a telephone conversation (17 July 2003).
133. 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.
134. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
135. Hawkesbury Nepean Community Legal Centre, Submission.
136. Gosford consultation.
137. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
138. Legal Aid NSW, Submission.
139. See Recommendation 18 and the preceding discussion at para 6.2-6.21.
140. See Recommendation 36.
