NEGOTIATING APPREHENDED DOMESTIC VIOLENCE
ORDERS: ACHIEVING WORKABLE ORDERS WHERE
CHILDREN ARE INVOLVED
Kasey Pearce
Solicitor
Legal Aid NSW
1 Introduction
Apprehended violence orders (“AVOs”) are something of a hybrid form of law.
While strictly speaking they are part of the civil law, they are often sought in
circumstances where a criminal offence is alleged to have occurred, and so
“travel” with a criminal charge. They also impact on the area of family law, in
that they play a significant role in regulating relationships within families that
are often in crisis, and in parenting proceedings conducted under the Family
Law Act 1975.
Legal Aid NSW does not fund defendants in AVO proceedings, except in
limited circumstances. However, most criminal law solicitors will have
represented clients in relation to either an Apprehended Domestic Violence
Order (“ADVO”) or an Apprehended Personal Violence Order (“APVO”),
where the AVO is associated with a criminal charge. In these circumstances,
the focus of the criminal law solicitor will generally be on the client's charges,
on getting him1 out on bail, on negotiating charges and facts, and on having
the client acquitted, or if this is not possible, getting him the best result on
sentence. If the solicitor has a copy of the client’s AVO on the file at all, it
tends to tag along as something of an afterthought to the charges the client is
facing.
No solicitor giving advice to, or representing, a client in relation to an AVO can
afford to approach an AVO application in so limited a way. You have an
obligation to do the best for your client in relation to that AVO, as much as you
do with the charges that you are probably much more interested in. Your
ethical obligations as a solicitor require you to advise your client of the
implications of the AVO application, to take instructions in relation to the
conditions sought in the application and to advocate as best you can on your
client's behalf in order to achieve a workable AVO that both protects those
who require the intervention of the law, but does not involve any greater
imposition on the defendant than is necessary in all the circumstances. In no
situation is this more important than where an AVO is sought in circumstances
of family breakdown, where there are children involved.
1
Domestic violence is very much a gendered issue. For this reason, throughout this paper I
will refer to the defendant as male and the adult protected person as female.
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2 The Legal Framework of AVOs
The power to make AVOs is dealt with under the Crimes (Domestic and
Personal Violence) Act 2007 (NSW) ("the Act"). This Act replaced "as a
principal stand alone Act, with some modifications"2 what used to be Part 15A
of the Crimes Act 1900 (NSW). The Act commenced on 10 March 2008.
More recently, practice and procedure in relation to AVO proceedings in the
Local Court has been supplemented by Local Court Practice Note No. 2 of
2012 (“the Practice Note”), which commenced operation on 1 May 2012.
The significant changes contemplated by the Practice Note would seem to be
in response to the ever increasing length of court lists in AVO proceedings.
The aim of the Practice Note is to bring proceedings in relation to AVOs in line
with procedures applying to civil proceedings generally under the Civil
Procedure Act 2005 and is based on a form of case management that was
introduced at Blacktown Local Court some time ago.
3 The Content and Effect of ADVOs
3.1 The effect of AVOs generally
The making of an AVO, whether on an interim or final basis, irrespective of its
terms, can have significant consequences for defendants, including the
following:
(i)
a firearms licence or weapons permit will be automatically suspended
on the making of an interim AVO against the licence or permit holder 3
and automatically revoked on the making of a final AVO against the
licence holder4. On the suspension or revocation of such licences or
permits, the relevant firearms or weapons must be surrendered to the
police;
(ii)
the tenancy of a tenant or co-tenant under a residential tenancy
agreement may be terminated if a final apprehended violence order is
made that prohibits the tenant or co-tenant from having access to the
residential premises under the agreement;5
(iii)
a final AVO will be considered in a Working with Children Check;6
2
Agreement in Principle speech, Legislative Assembly, 16 November 2007, p 4327
3
Firearms Act 1996 (NSW), s 23; Weapons Prohibition Act 1998 (NSW), s 17
4
FA s 24; WPA, s 18
5
Residential Tenancies Act 2010 (NSW), s 79
6
The Employer Guidelines produced by the Commission for Children and Young People
provide that there are three types of "relevant records" considered in the Working with
Children Check: relevant criminal records, relevant apprehended violence orders (AVOs) and
relevant employment proceedings. A "relevant Apprehended Violence Order" is defined to
include an AVO (other than an interim order) that is:

made by a court under the Crimes (Domestic and Personal Violence) Act 2007; or
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(iv)
a party to parenting proceedings under the Family Law Act 1975 must
inform the court of an ADVO (interim or final) that applies to the child or
a member of the child’s family7 and the court may draw “relevant
inferences” from the ADVO itself or from the circumstances
surrounding the making of the ADVO.8
Because of the potential far-reaching implications for defendants of an interim
or final AVO being made, they must not be taken lightly. It is essential that
solicitors advise all defendants in AVO matters, whether or not there are
associated charges, of the implications of an AVO being made against them.
3.2 What is an ADVO?
An ADVO is an order made under Part 4 of the Act. An APVO is an order
made under Part 5 of the Act.9
An application for an ADVO is made for the protection of a person (a
“PINOP”) with whom the defendant has, or has had, a domestic relationship
or, where there are two or more PINOPs, where the defendant has, or has
had, a domestic relationship with at least one of them.10
A PINOP and defendant have, or have had a “domestic relationship” where
they are, or have been:








married;
in a de facto relationship;
in an intimate personal relationship (whether or not involving a
relationship of a sexual nature);
living in the same household (including living in a residential facility, but
not including living in the same correctional or detention centre);
in a relationship involving the PINOP’s dependence on the paid or
unpaid care of the defendant;
relatives, or
in the case of Aboriginal or Torres Strait Islander persons, extended
family or kin according to the indigenous kinship system of the person’s
culture.11
made on the application of a police officer or other public official for the protection of a
child (or a child and others). https://check.kids.nsw.gov.au/employer-guidelines.php
section 5.2
However, the Child Protection (Working with Children) Bill 2012 (NSW), which was assented
to on 27 June 2012, establishes a new Working with Children Check. In the new Check only
certain criminal records and disciplinary findings will lead to an assessment of person's risk to
children. Once an assessment is underway, the assessor will consider a broad range of
information, including any AVOs taken out to protect children. The Bill has yet to be
proclaimed.
7
Family Law Act 1975 (Cth) s 60CF
8
FLA s 60CC(3)(k)(i)
9
Crimes (Domestic and Personal) Violence Act 2007 (NSW) s 3
10
CDPVA s 15(1)
11
CDPVA s 5
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A "relative" is defined in s 6 of the Act. In general terms it includes relations
by blood, half or step relations, or relations of the defendant's spouse or de
facto spouse.
If the defendant has not had a domestic relationship with at least one of the
PINOPs then the application is to be treated as an application for an APVO.12
3.3 Person in need of Protection (“PINOP”)
There may be one or more PINOPs listed on an ADVO.
children or adults, or a combination of both.
They may be
3.3.1 Adult PINOPs
It is important to take instructions as to the relationship between the defendant
and any adult PINOPs listed on an AVO application to ensure that the
application is categorised correctly as an ADVO or APVO. This is because
ADVOs and APVOs are, in some respects, treated differently under the Act
(for example, the provisions relating to the mandatory inclusion of children on
ADVOs in some circumstances and the availability of mediation for APVOs)13.
3.3.2 Child PINOPs
Children may be listed as PINOPs on an ADVO in one of two ways. Firstly,
they may themselves be either direct or indirect victims of domestic violence.
Secondly, they may be included as a result of the operation of section 38(2) of
the Act, which requires that, a court or authorised officer14 making an interim
ADVO must include as a protected person under the order any child 15 with
whom an adult PINOP has a domestic relationship, unless the court or
authorised officer is satisfied that there are good reasons for not doing so, and
provided the reasons for not doing so are given.16
In practice police officers applying for ADVOs will generally include on an
ADVO the names of children in a domestic relationship with an adult PINOP.
However, sometimes not all children who are in a domestic relationship with
an adult PINOP are included on an ADVO application. In cases where the
PINOP and defendant live separately, children may be included who are in
the primary care of the defendant, rather than the PINOP, or who, although
living with the PINOP, spend time with the defendant. It is important to take
detailed instructions in relation to the residence and contact arrangements for
each child that is included as a protected person on an ADVO application.
12
CDPVA s 15(2) & s 18(2)
13
CDPVA s 21
14
Defined in s 3 CDPVA to have the same meaning as in the Law Enforcement (Powers and
Responsibilities) Act 2002, that is, a Magistrate or Children’s Magistrate or a Registrar of the
Local Court.
15
CDPVA s 3 defines a “child” to mean a person under the age of 16 years.
16
CDPVA s 38(3)
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The inclusion of a child PINOP on an ADVO application should be resisted in
appropriate circumstances, in part because of the relevance of ADVOs in
family law proceedings, but also because of the difficulties in varying ADVOs
where a child is separately listed as a PINOP.17
Depending on your client’s instructions, and the conditions sought in the
ADVO application, you might make submissions either at an interim or final
stage to the effect that there are good reasons for not including a child as a
PINOP on an ADVO. These submissions will have little chance of success
where the grounds of the ADVO application allege, or any evidence presented
at hearing establishes direct physical violence towards a child, or in the
presence of a child, or a threat of violence towards a child. Such submissions
are more likely to succeed where the conduct grounding the application
consists of words only, or where there is no allegation that the child was
present when the conduct complained of occurred.
Police Prosecutors are generally reluctant to consent to the removal of a child
from an ADVO at either the interim or final stage, preferring to the leave to the
court the decision as to whether or not a child should be separately listed as a
PINOP on an ADVO.
3.4 The content of AVOs
When making an AVO, a court may impose such prohibitions or restrictions
on the behaviour of the defendant as appear necessary or desirable to the
court and, in particular, to ensure the safety and protection of the PINOP and
any children from domestic or personal violence.18
Every AVO must include certain mandatory orders, which are always included
as order 1(a), (b) or (c) on an AVO application or provisional order.19Any or all
of the other listed prohibitions or restrictions in section 35(2) of the Act may
also be included. In practice the orders sought by the Applicant are presented
to the court by way of a list of section 35(2) orders, in which the orders sought
are ticked.
While in the majority of cases the orders sought by investigating Police at first
instance are both necessary and appropriate for the protection of those
individuals on whose behalf the ADVO is brought to court. There are,
however, a minority of cases where this will not be the situation. In such
cases, at either an interim or final stage, the listed conditions may be varied,
or additional conditions added, to the ADVO application by the police or the
court depending on the requirements in individual cases.
17
CDPVA s 72(3)
18
CDPVA s 35(1)
19
CDPVA s 36
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3.4.1 Issues relating to specific orders
When considering the specific orders sought by an applicant for an ADVO,
solicitors should take instructions from the client as to the existence of any
parenting plans or parenting orders in relation to any children named as
PINOPs on the ADVO or any children in care of either party. This is because
in deciding whether or not to make or vary a final ADVO or interim ADVO, the
court must consider whether contact between the PINOP, or between the
defendant, and any child of either of those persons is relevant to the making
or variation of the order, and have regard to any relevant parenting order of
which the court has been informed.20
Under section 68R of the Family Law Act, a court can vary, discharge, or
suspend an existing family law order, injunction or arrangement on the
grounds that it has exposed, or is likely to expose, the protected persons to
family violence.
Mandatory orders
By virtue of section 36 of the Act, the mandatory orders (orders 1. (a), (b) and
(c)) are specified to apply to every person with whom a PINOP has a
domestic relationship. For this reason, where an Applicant seeks only the
mandatory orders, but includes a child PINOP on the application by virtue of
section 38(2), there is an argument for the child being removed, as the child
will be protected by the mandatory orders by virtue of their domestic
relationship with the adult PINOP.
Residence orders
2.
The defendant must not reside at the premises at which the protected
person(s) may from time to time reside, or other specified premises.
While order 2 may be appropriate in many circumstances, it can sometimes
be used by a PINOP as a substitute for an order for exclusive occupancy of
the family home under the Family Law Act.
3.
The defendant must not enter the premises at which the protected
person(s) may from time to time reside or work, or other specified
premises
You should also be aware of the operation of section 79 of the Residential
Tenancies Act (see fn 7) in circumstances where a final AVO is made that
includes orders 2 or 3.
4.
20
The defendant must not go within [100 metres] of the premises at
which the protected person/s may from time to time reside or work, or
other specified premises.
CDPVA s 42(3)
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Be aware that the inclusion of order 4 may cause problems to a defendant,
where the arrangements for changeovers in relation to children are that they
take place at the PINOPs home. In such cases order 3 might be preferable.
In deciding whether or not to make an order that would prohibit or restrict
access to the defendant’s premises, the court must consider the
accommodation needs of all parties, but “in particular, the protected person
and any children”.21
Contact orders
5.
The defendant must not approach or contact the protected person(s)
by any means whatsoever except through the defendant's legal
representative or as agreed in writing or as permitted by an order or
directions under the Family Law Act 1975 as to counselling,
conciliation, or mediation
This order is preferable to orders 6 or 7 when there are children involved and
there is no parenting plan or family law orders in place. Some Magistrates will
interpret the whole of this order as applicable only to circumstances involving
"counselling, conciliation or mediation". It is sometimes better to ask that
these words be deleted from the order, so that, if, for example, there is a
written agreement between the parties as to when the defendant is to spend
time with the children, then there is no question as to whether or not he or she
is prevented from doing so by the ADVO.
6.
The defendant must not approach or contact the protected person(s)
by any means whatsoever except through the defendant's legal
representative or as authorised by a current parenting order under the
Family Law Act 1975
This order is probably most appropriate for those situations where the parties
to the ADVO have children and there are already family law orders in place
governing the time the children are to spend with each party and how
changeover is to occur. If there are no orders in place then order 5 is
probably the better option, because it leaves open the possibility that
separated parties may enter into a parenting plan rather than seeking formal
orders from a court.
7.
The defendant must not approach or contact the protected person(s)
by any means whatsoever, except through the defendant's legal
representative.
While this order may be appropriate for an adult PINOP, if a child PINOP is
included on the ADVO, this order will prevent the defendant having any
contact at all with the child (either face to face, by mail, or by telephone),
including supervised contact or contact at a specialist contact centre. Orders
5 or 6 may be more appropriate, depending on the circumstances.
21
CPDVA s 17(2)(c)
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3.5 When may an ADVO be made?
A court may make an ADVO if satisfied on the balance of probabilities that a
PINOP who has or has had a domestic relationship with the defendant has
reasonable grounds to fear and in fact fears:
(1)
the commission by the defendant of a personal violence offence
against the PINOP, or
(2)
the engagement of the defendant in conduct in which the defendant
intimidates22 the PINOP or a person with whom the PINOP has a
domestic relationship, or stalks the PINOP
provided such conduct is, in the opinion of the court, sufficient to warrant the
making of the order.23
The test is therefore both objective (“has reasonable grounds to fear”) and
subjective (“in fact fears”). Where the PINOP is a child, or other vulnerable
person, or where the PINOP has been subject to conduct by the defendant
amounting to a personal violence offence, only the objective test applies. 24
In considering whether or not to make an ADVO the court must consider the
safety and protection of the PINOP and any child directly or indirectly affected
by the conduct of the defendant alleged in the application for the order. 25
However, in doing this 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 PINOP and any child
directly or indirectly affected by the conduct of the defendant.26 You should
always argue, therefore, for the imposition of the least restrictive orders on the
defendant, consistent with the protection of any PINOPs.
22
“Intimidation” is defined in s 7 of the CDPVA as meaning:
(i)
conduct amounting to harassment or molestation of the person, or
(ii)
an approach made to the person by any means that causes the person to fear for his
or her safety, or
(iii)
any conduct that causes a reasonable apprehension of injury to a person or to a
person with whom he or she has a domestic relationship, or of violence or damage to
any person or property.
For the purposes of s 16, conduct may amount to intimidation of a person even though it does
not involve actual or threatened violence to the person or consists only of actual or threatened
damage to property belonging to, in the possession of, or used by the person (s16(3)).
23
CDPVA s 16(1)
24
CDPVA s 16(2)
25
CDPVA s 17(1)
26
CDPVA s 17(3)
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4 Practice and Procedure in relation to ADVO applications
4.1 Commencing proceedings
ADVO applications may be made in conjunction with criminal charges or on
their own. Most criminal law solicitors will represent defendants in relation to
ADVOs that are associated with criminal charges, although on occasion they
may be required to give advice to, or to represent, clients who are defendants
to ADVOs where there are no related charges.
4.1.1 Who may apply for an ADVO?
An application for an ADVO may be made by the PINOP (or by more than one
PINOP) on behalf of the PINOP him/herself or on behalf of any other person
with whom the PINOP has a domestic relationship, or by a police officer on
behalf of one or more PINOPs.27 Where the PINOP is a child28, the
application may only be made by a police officer.29
4.1.2 How is an ADVO applied for?
Application proceedings are commenced by the issuing and filing of an
application notice.30 In practice, however, the majority of ADVO applications
are brought to court by way of a provisional ADVO.31
A provisional ADVO is an application for an interim ADVO that is made by a
police officer by telephone, facsimile or other communication device.32
An application for a provisional order may be made to an authorised officer if
an incident occurs involving the defendant and the PINOP, and the police
officer believes that a provisional order is required immediately to protect the
PINOP or the PINOPs property.33
An application for a provisional order must be made if the police officer
investigating the incident concerned suspects or believes that a domestic
violence offence or an offence against s 13 of the Act (stalk/intimidate) has
recently been, or is likely to be committed, against the PINOP,34 and the
police officer believes an order needs to be made immediately to protect the
PINOP or the property of the PINOP.
A provisional ADVO remains in force until midnight on the twenty-eighth day
after the order is made unless it ceases to have effect because a court makes
27
CDPVA s 48(2).
28
For the purposes of the CDPVA a child is defined to mean a person under the age of 16
years (s 3)
29
CDPVA s 48(3)
30
CDPVA ss 50-52
31
A provisional ADVO is taken to be an application for an ADVO (CDPVA s 29(1))
32
CDPVA s 25
33
CDPVA s 26(1)
34
CDPVA s 27(1)(a)(i) & (ii)
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an ADVO (interim or final) for the protection of the PINOP, or because it is
withdrawn or dismissed.35
When a provisional ADVO is considered by a court, the court may vary or
revoke the order by amending or deleting any prohibitions or restrictions
specified in the order, or by specifying additional prohibitions or restrictions in
the order.36 If a court purports to renew or continue a provisional order the
order is taken to be an interim court order.37
4.2 Interim ADVOs
4.2.1 Proceedings in relation to interim ADVOs
A court may make an interim ADVO if it appears to the court that it is
necessary or appropriate to do so in the circumstances,38 and provided the
court is satisfied of the matters set out in section 16 and 17 of the Act (see 3.5
above).
When a person is charged with an offence that appears to the court to be a
“serious offence”39, the court must make an interim court order against the
defendant for the protection of the person against whom the offence appears
to have been committed, (whether or not an application for an order has been
made), unless the court is satisfied that it is not required.40
There is scant guidance provided in the legislation as to the procedure to be
followed by the court in determining whether an interim AVO should be made.
Part 5 of the Practice Note fills the gap to some extent, but ultimately provides
that, subject to Part 5, “the procedure to be followed at a hearing where an
interim apprehended violence order is sought...will be determined by the
Court.”41
4.2.2 Proceedings for interim orders in the absence of the PINOP
Section 5.5 of the Practice Note provides that an interim order may not be
made unless the PINOP is present at an interim hearing, unless the Court is
satisfied that:
(i)
the person is unable for good reason to be present and
(ii)
the matter requires urgent consideration by the Court.42
If the court is so satisfied then it may admit an affidavit or written statement43
by a police officer that is tendered on behalf of the PINOP.44
35
CDPVA s 32(1)
36
CDPVA s 33(2)
37
CDPVA s 34(2)
38
CDPVA s 22(1)
39
Defined in CDPVA s40(5)
40
CDPVA s 40(3)
41
Local Court Practice Note 2 of 2012: section 5.2
42
LCPN 2: section 5.5
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It is unclear what, if any, additional information can be admitted. It is also
unclear, in cases where the PINOP is not present at the interim hearing, how
this section of the Practice Note fits with the obligation imposed upon the
court by section 40 to make an interim order where a person has been
charged with a serious offence.
4.2.3 Proceedings for interim orders in the absence of both the PINOP
and defendant
If both the defendant and the PINOP are absent, a court may consider: 45
(i)
the grounds set out in an application for an order, including a
provisional order granted by an authorised justice; and/or
(ii)
a written statement taken by a police officer from the PINOP;
(iii)
an affidavit or written statement by a police officer that is tendered on
behalf of the PINOP, (but only if the PINOP is unable to be present for
a good reason and the matter requires urgent consideration by the
court). 46
4.2.4 Proceedings for interim orders in the presence of both the PINOP
and defendant, where the application is contested
If both the defendant and PINOP are present, a court may consider the
application on the basis of any one or more of the following:
(i)
the written grounds supporting the application;
(ii)
a written statement from any witness intended to be called at the
interim hearing;
(iii)
evidence given orally (including in cross-examination) at the interim
hearing;
(iv)
any submissions made by the parties or their legal representatives.47
A court may make an order determining the amount of time that may be taken
by each party in the examination, cross-examination or re-examination of a
witness who is giving evidence orally at an interim hearing. 48 Unless the court
orders otherwise, the evidence in chief and cross-examination of a witness at
an interim hearing is limited to establishing whether or not it is necessary or
appropriate for the Court to make an interim order, and not to be directed to
establishing whether the making of a final order is warranted.49
Defined in section 2.1 of LCPN 2 as meaning “a written statement prepared in accordance
with the form and requirements of Division 3 of Part 3 of Chapter 3 of the Criminal Procedure
Act 1986.”
43
44
CDPVA s 22(4)
45
LCPN 2: section 5.6
46
CDPVA s 22(4)
47
LCPN 5.7
48
LCPN 5.4
49
LCPN 5.8
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4.3 Final ADVOs
4.3.1 When a court must make a final ADVO
By virtue of section 39 of the Act, if a person pleads guilty to, or is found guilty
of a domestic violence offence (excluding murder or manslaughter), the court
hearing the proceedings must make an AVO for the protection of the person
against whom the offence was committed whether or not an application for
such an order has been made, unless the court is satisfied that it is not
required.50
A “domestic violence offence” is defined in section 11 to mean a “personal
violence offence” committed by a defendant against a person with whom he
has a domestic relationship. A “personal violence offence” is defined in
section 4 of the Act.
A final ADVO does not have to be made in the same terms as an interim
order.51 This means that it is open to the defendant or the defendant’s
representative to make submissions as to the appropriate conditions to be
included in a final AVO.
4.3.2 Proceedings in relation to final AVOs
Proceedings in relation to final AVOs are dealt with in Division 4 of Part 10 of
the Act. However, the guidance provided by these sections as to the
procedure to be followed in relation to final AVO proceedings is scant. The
Practice Note attempts to fill this gap.
Part 6 of the Practice Note essentially brings practice and procedure in
relation to AVOs into line with procedures under the Civil Procedure Act 2005.
The object of the Practice Note is “to promote consistency and efficiency in
the determination of application proceedings and procedural fairness to all
parties”.52 53
The Practice Note provides that contested applications for final AVOs are to
be dealt with by written statements of all witnesses’ evidence, with limited
cross examination. Interim AVO proceedings and proceedings where there
are criminal charges and an associated AVO are excluded from the operation
of Part 6. The Practice Note requires that each party serve on the other
copies of statements of all witnesses intended to be called by that party at the
hearing of final AVO in accordance with the timetable set by the court. Except
with the leave of the court, the written statement of that witness will stand as
that witness’s evidence in chief, so long as that person testifies to the truth of
the written statement.
50
CDPVA s 39
51
CDPVA s 22(5)(b)
52
LCPN 3.2
53
For comments on the potential impact of the Practice Note on defendants, particularly those
who are unrepresented see Licha, M. 2012 New AVO practice note delivers efficiency, but at
a price. Law Society Journal Vol 50, No 5 (June 2012). pp 32-34
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Attached to the Practice Note are standard directions for listing an AVO
proceeding for hearing.
In summary, they provide that:
(i)
the applicant is to file all written statements within two weeks, but
police officers can file their written statement on the day of hearing;
(ii)
the defendant is to file written statements in reply within a further two
weeks; and
(iii)
the matter is listed for mention only, one week later, to check all
statements have been filed.
On the mention date the following may happen;
(i)
if the applicant has failed to comply with the direction, the application
may be struck out or the court may order the filing of the outstanding
statement;
(ii)
if the defendant has failed to comply with the directions, the matter will
proceed on the evidence filed by the applicant alone on the mention
day;
(iii)
if neither party has complied with the directions, the application will be
dismissed.
If both parties have complied with the directions, the matter will be listed for
hearing.
If satisfied that it is “in the interests of justice” to do so, the Court may
dispense with compliance with any or all of Part 6. No guidance is given
either in the Act or the Practice Note as to the circumstances in which it might
be "in the interests of justice" for a defendant not to be required to comply with
Part 6. It is unlikely that the fact that a defendant is not legally represented
will qualify, given that it appears that the Practice Note is directed at precisely
such defendants. However, it is possible that mental illness, a lack of literacy,
or lack of proficiency in English may get a defendant over the line.
It is to be noted that statement filed by a defendant in ADVO proceedings may
be taken into account by a court in parenting proceedings under the Family
Law Act 1975.54
4.3.3 Determination at final hearing
Where s 39 of the Act does not apply (ie. where an AVO must be made on a
guilty plea or guilt finding for certain offences), then unless the court orders
otherwise, an application for a final ADVO is to be heard and determined on
the basis of:
(i)
the written grounds supporting the application;
54
FLA s 60CC(3)(k)(iii) provides that a court may take into account any evidence admitted in
proceedings for a family violence order that applies to a child or a member of the child’s
family.
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(ii)
evidence in chief given by way of written statements that have been
served in accordance with any case management orders;
(iii)
subject to leave being granted by the court, any additional evidence of
a matter or thing occurring or becoming known to the witness after the
making of a written statement;
(iv)
any cross-examination evidence or re-examination evidence given
orally by a witness at the final hearing; and
(v)
any submissions made by the parties or their legal representatives at
the final hearing.55
5 Variations and Revocations
An application may be made at any time for the variation or revocation of an
interim or final AVO.56 The application may be made by the PINOP, a police
officer, or the defendant, except in cases where the protected person or one
of the protected persons is a child at the time of the application, in which case
the application can only be made by a police officer.57
6 Conclusion
The primary object of the Act is “to ensure the safety and protection of all
persons, including children, who experience or witness domestic violence”.
This object should not be achieved by ADVOs that impose any greater
restrictions on a defendant than are necessary in all the circumstances.
Better advice and advocacy that results in more appropriate and workable
ADVOs is likely to achieve outcomes that result fewer subsequent breaches.
55
LCPN at 7.2
56
CDPVA s 72(2)
57
CDPVA s 72(3)
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