Overview of Domestic Violence Legislation in NSW

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In the lead up to International Women’s Day, we have been researching the major issues affecting women. So far this year, almost two women a week have been killed as a result of domestic violence. If you or someone you know is experiencing domestic violence, it’s important to know your legal rights and options. This Amnesty NSW Legal Network article can help you understand the legal framework there for your protection in NSW.

All sections quoted in this article refer to the Crimes (Domestic and Personal Violence) Act (NSW) 2007.

1. What is an apprehended Domestic Violence Order (ADVO)?

An ADVO is the primary legislative protection for victims of domestic violence. It is an order for your protection against someone with whom you have, or have had, a ‘domestic relationship’: s 15. Domestic relationships include, for example, marriage, de facto relationships, relatives, relationships between people in the same household, and ‘intimate personal relationships’, whether sexual or not: s 34.

The person seeking protection is called the ‘protected person’, while the person against whom the order is made is called the ‘defendant’.

2. In what circumstances will the court issue an ADVO?

A court will make an ADVO if you have reasonable grounds to fear, and in fact fear that the defendant will commit a domestic violence offence, or will intimidate or stalk you. The court must be satisfied of this on the balance of probabilities, meaning that this is more likely than not to occur.

In deciding this, the court’s overriding consideration is your safety and protection: s 17(1).

Moreover, a court must make an order for a final ADVO when a person pleads guilty to domestic violence offences or stalking or intimidation offences: s 39.

Alternately, interim ADVOs can be made on application if it appears to the court that it is necessary or appropriate to do so in the circumstances: s 22(1).

Further, the court can make a provisional interim ADVO, where there has been an incident, and there is an urgent and immediate need to ensure the safety of the protected person: see Part 7. These applicants can be made by telephone or fax: ss 25(1) and s 26(1). Moreover, these orders don’t have to be made by the court; they can be made by ‘authorised officers’, including some NSW officials, magistrates and court registrars.

3. How do I make an application?

Either you, or a police officer on your behalf, may apply for an ADVO: s 48.

If you choose to go to the police for assistance, many police stations have a Domestic Violence Liaison Officer (DLVO) available to help. The DLVO will be familiar with the application process and able to provide support. However, even if your local police station doesn’t have a DLVO, they will still be able to help you lodge an application.

In some situations, a police officer must make an order for an ADVO. For example, an order must be made if the officer suspects or believes that a domestic violence offence or incidence of stalking has recently been or is being committed, is imminent, or is likely to be committed against you (see ss 27(1)(a)(i) and s 49(1)(a)).

A police officer making an application will take care of the application notice and filing the court, as well as serving the notice on the defendant: ss 51 and 55(1).

Alternately, if you want to make the application yourself, the Registrar at the Local Court can prepare the ADVO application for you. This will contain the names and contact details of you and the defendant, the order sought and the legislation under which it is sought, and the grounds for the application. This must be signed by the registrar and filed with the Court: s 50. Then, a person authorised by the court will serve the notice on the defendant: s 52.

Once an application for a final ADVO has been made, an authorised officer can issue a warrant for the arrest of the defendant, even where the defendant is not alleged to have committed an offence: s 88(1) and s 88(2). In fact, an officer must do so if it appears that your personal safety is at risk: s 88(3).

4. What is the effect of an ADVO?

An ADVO restricts the behaviour of the defendant. All ADVOs prohibit the defendant from assaulting, molesting, harassing, threatening, intimidating, stalking or otherwise interfering with you, or a person with whom you have a domestic relationship: s 36.

The court can impose any prohibitions or restrictions on the defendant’s behaviour as it thinks necessary or desirable to protect you and/or your children: s 35. This may include restricting the defendant’s access to your property, place of employment or any other place where you go: s 35(2). These restrictions can be imposed even if the defendant owns or partially owns the property, or has any legal interest in any of those places: s 35(2).

ADVOs can still be made where the defendant is still living in your property, and just prohibit the conduct listed above without restricting their access to your home.

Additionally, an ADVO may prohibit or restrict the defendant’s possession of firearms, or require the defendant to dispose of firearms or surrender their firearms license: s 35.

If you have an ADVO, make sure you understand the prohibitions and restrictions it imposes on the defendant, and keep a copy with you at all times.

5. When and where are the ADVOs effective?

An ADVO is only effective once it has been served on the defendant.

Moreover, an ADVO made in NSW is only effective in NSW. If you wish to move to another state or territory in Australia or New Zealand, your ADVO can be registered to make it enforceable there as well.

6. How long are ADVOs effective for?

A final ADVO is effective for the time period specified in the order: s 79 (1). This period must be as long as the court considers necessary to ensure your safety and protection: s 79(2). If no period is specified, the ADVO is effective for one year: s 79(3).

An interim ADVO is effective until it is revoked, or a final ADVO is made, or the application for a final ADVO is withdrawn or dismissed: s 24.

A provisional ADVO is effective until midnight on the 28th day after the order is made. It will stop being effective if it is revoked; or if the application for a final ADVO is withdrawn or dismissed; or if an interim or final ADVO is made: s 32.

7. What if I want to change or revoke the ADVO?

You, the defendant or a police officer can make an application for the variation or revocation of an ADVO at any time: s 72. You may want to do this to extend or reduce the order’s duration, or to change or add any restriction or prohibitions: s 73.

A court may change or revoke an ADVO if it is satisfied in the circumstances that it is proper to do so: s 73(1). This involves a consideration of your safety and protection and anyone else directly or indirectly affected: s 42.

8. What happens if the defendant breaches an ADVO?

Breaching an ADVO is a criminal offence, which can result in the defendant being charged: s 14. Any breach of an ADVO, no matter how seemingly minor, constitutes a criminal act.

If your ADVO is breached, report it to the police as soon as possible. You can do this in person at a police station, by calling a station, or by calling 000 in an emergency.

If you report the breach in person, you can bring a support person and ask to see the Domestic Violence Liaison Officer. You can also ask to make a written statement, and request a female officer.

Whether you call or go in person, make sure a record is made on the police computer system and ask for an ‘Event Number’ for future reference. Details on the ‘000’ number are always recorded.

It is police policy to investigate all reported breaches. However, in practice it may be necessary to follow up with the police or engage an advocate or caseworker to make sure action is taken (see below for legal services).

Knowingly breaching an AVO is a criminal offence, punishable by a maximum penalty of two years in prison and/or a fine of $5500. If violence is involved and a court finds the defendant guilty, there is a presumption that the defendant will go to prison: s 14(4). In these circumstances, if the court decides not to impose a sentence of imprisonment, it must give reasons: s 14(6).

It is important to know that if you choose to make a statement, and the defendant is charged with an offence and pleads not guilty, you may be required to be a witness in court.

9. Will I be supported in court?

If the police made the ADVO application for you, the police prosecutor will represent you, however you will still need to attend court to support the police application. If you made the application privately, you can represent yourself or engage a lawyer to represent you.

For help with any court-related matter, contact the Women’s Domestic Violence Court Advocacy Services (‘WDVCAS’) (see below for contact details). Many Local Courts have a WDVCAS to support you, and several courts have ‘safe rooms’ for you to give evidence without seeing the defendant. If there is no WDVCAS, make sure you tell the court about any fears or concerns you might have so appropriate arrangements can be made for your protection.

10. What if I don’t want my identity or address to be known?

Your address must not be stated in an application for an ADVO or an order, unless you have consented to this, where the defendant already knows the address, or it is necessary for the ADVO and your safety would not be seriously threatened: s 43.

A court may also order that your name must not be published before the proceedings have finished: s 45(2).

11. What services are available to me?

Women’s Legal Services NSW is a specialist legal service for victims of domestic violence, offering free and confidential legal services. It operates a number of telephone advice lines. Call the Domestic Violence Legal Advice Line on (02) 8745 6999 or 1800 810 784 for information about your legal rights as well as casework and advocacy. For opening hours, see http://www.wlsnsw.org.au/contact-us/#dvline.

Women’s Domestic Violence Court Advocacy Program fund 14 Women’s Domestic Violence Court Advocacy Services, servicing 114 local courts in NSW. They can provide help and information, as well as refer you to solicitors if necessary. The contact numbers for these local services can be found at http://www.legalaid.nsw.gov.au/what-we-do/community-partnerships/womens-domestic-violence-court-advocacy-program/womens-domestic-violence-court-advocacy-service-locations-in-nsw.

Your local legal centres may be able to help you access WDVCAS. For example, see Redfern Legal Centre: http://rlc.org.au/our-services/domestic-violence.

For help with accommodation, counseling and legal advice, contact details can be found at http://www.dvnsw.org.au/help.

If you or someone you know is affected by domestic violence, call 1800RESPECT on 1800 737 732. In an emergency, call 000.

Please note that this article does not look at provisions relating to children experiencing domestic violence.