It is an unfortunate fact of modern society that from time to time within families or communities that the legal system will be called to intervene so as to ensure that individuals behavior towards each other in a way that there is less risk of a person being assaulted or treated in a manner so as either they or their family will feel intimidated.
This if often achieved by the intervention of the police, however, where the police elect not to take action or want to ensure that the action they take against a person has the full force of the law, there may be a need for the court to consider making an Apprehended Violence Order under the Crimes (Domestic & Personal Violence) Act 2007 which are also commonly known as restraining orders.
Who can take out an order?
A police officer can make an application for an order on behalf of any person above the age of 18 if that police officer thinks that it is appropriate to do so. Often, this will occur if the police have charged a person with an offence involving violence or intimidation and the police have fears in relation to the future conduct of then person charged towards the alleged victim.
If the police do consider it appropriate or necessary to take out the application, the person who considers themselves to be the victim can make application themselves to the Clerk of the Local Court.
When the alleged victim or PINOP is under (18), police MUST make an application for an order protecting the child unless there are specific circumstances as set out in the legislation.
What type of orders are able to be made by the court?
Briefly put, there are (2) categories of order that the court might make:
- Apprehended Domestic Violence Order (ADVO), and
- Apprehended Personal Violence order (APVO).
The person against whom the order is sought is called the defendant.
The person upon whose behalf the order is being sought is known as the person in need of protection (PINOP). An ADVO will be made in circumstances where the PINOP and the defendant are (or have been) in a domestic relationship. That phrase is defined within the legislation.
In all other circumstances, such as neighbours or work colleagues, the court will consider making an APVO.
A court can make an order that prohibits the defendant from doing the following that includes:
- Not assault molests, harass or intimidate the PINOP.
- Not to contact or approach the PINOP or a person they are involved in a domestic relationship with.
- Not to go enter or go within a nominated distance of a place where the PINOP lives, works or attends from time to time.
- Not to approach the PINOP within a certain period after having consumed alcohol or prohibited drugs. This list is not exhaustive.
Orders can be either provisional or final.
A provisional order will often be made by a court or a justice during the period between the order being first sought on behalf of the PINOP and the case being finalised. Police officers can request a provisional order by telephone from a justice after hours. If a provisional order has been made and served upon the defendant, then that order has the full weight of the law.
A final order will be made where either the defendant agrees to the order being made or if there has been a contested hearing and the court decides that an final order is warranted. A final order can be made for up to 5 years.
When will a court grant an order?
A court will make a final order in the following circumstances:
(a) The defendant agrees to the order:
(i) Admitting the content of the complaint contained in the order, or
(ii) Without admitting the content in the complaint but still agreeing to the order being made.
(b) If the defendant does not agree to the order and the court is satisfied after hearing evidence that:
(i) on the balance of probabilities the PINOP has reasonable grounds to fear and in fact fears violence, stalking or intimidation at the hands of the defendant, and
(ii) the conduct complained of is in the opinion of the court sufficient for the making of an order. It should also be remembered that a court will automatically make an order if the defendant has been found guilty of a criminal offence and the victim and defendant are 9 or have been) in a domestic relationship.
What does the court take into account deciding whether to make and order?
The court can take into account anything that it considers relevant however the following issues are set out in the Act as being relevant as to whether or not an order should be made.
- The safety and protection of the protected person and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order.
- In the case of an order that would prohibit or restrict access to the defendant's residence the effects and consequences on the safety and protection of the protected person and any children living or ordinarily living at the residence if an order prohibiting or restricting access to the residence is not made.
- Any hardship that may be caused by making or not making the order, particularly to the protected person and any children.
- The accommodation needs of all relevant parties, in particular the protected person and any children.
When making an apprehended domestic violence order, the court is to ensure that the order imposes only those prohibitions and restrictions on the defendant that, in the opinion of the court, are necessary for the safety and protection of the protected person, and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order and the protected person's property.
What is the effect of an Order?
If an order has been made against a person and they breach that order they can be charged with breach Domestic Violence order. A person convicted of this offence is liable to a maximum penalty of (2) years imprisonment.
Further, a person charged with a breach offence will find it difficult to be granted bail if the alleged breach involves violence.
Can an order be varied or revoked?
Yes. An application to either revoke or vary a condition or the length of a final order can be made at any time during the life of the order.
Can the order be appealed?
Yes, an order made by a Magistrate following a contested hearing for an order can be appealed to the District Court of NSW.
Why contest an application for an order?
Although having a either a final or provisional order made against a person does not result in them being punished or having a criminal record, it is nevertheless important to understand that any further complaint by the PINOP that the person has breached the order will often result in them being arrested and charged with a serious offence.
The other major issue that arises when an order has been made is that it will result in the defendant's firearm licence being suspended or revoked for up to (10) years.
Differences between AVO(s) and criminal charges - a helpful guide
Apprehended Violence Order Criminal Charge (eg. Assault) is not a criminal conviction. Offender, if charged and found guilty, usually has a criminal conviction recorded.
Women can apply for the order themselves, or under certain circumstances the police have an obligation to assist a victim by applying for an order for her. Police lay charges and prosecute the matter (a woman may commence a private prosecution).
Purpose is to provide protection from future violence, harassment or molestation or stalking Purpose is to deal with offences which have already occurred. ( i.e. past behaviour) and may have a deterrent effect.
Places conditions or restrictions on the offender, i.e. orders the offender not to do certain things. The conditions can be "tailor made" to suit the individual victim's need for protection. Imposes a sentence (e.g. bond, fine, prison sentence) on the offender.
Standard of proof. Magistrate must be satisfied on the balance of probabilities, ie, it is more likely than not that the victim's fear is reasonable and justified. Standard of proof. Must be proved beyond reasonable doubt that the alleged offence occurred.
A breach of an AVO (ie. breaking the conditions of an order) is a criminal offence.
Contact Sharon Ramsden on firstname.lastname@example.org or phone (02) 4626 5077.