Domestic Violence NSW

Transcription

1 ` Domestic Violence NSW APPREHENDED DOMESTIC VIOLENCE ORDERS FACTSHEET AND INFORMATION FOR YOU August 2015 Page 1

2 APPREHENDED DOMESTIC VIOLENCE ORDERS What is an Apprehended Domestic Violence Order? An Apprehended Violence Order (AVO) is a court order designed to protect you from future violence and intimidation by restricting the behaviour of another person (the defendant). There are two types of AVOs: 1 Apprehended Domestic Violence Orders (ADVOs) are made where you are, or used to be, in a domestic relationship with the defendant. 2 Apprehended Personal Violence Orders (APVOs) are made where you have not been in a domestic relationship with the other person. For example, APVOs are made where the defendant is your neighbour or a co-worker. This factsheet provides information about ADVOs only and it relates to orders made in New South Wales. What is a Domestic Relationship? The following are examples of domestic relationships: you are or used to be married to the defendant; you are or used to be in a de facto relationship with the defendant; you are or used to be in an intimate personal relationship with the defendant (the relationship does not need to be of a sexual nature); you are living or have lived in the same household as the defendant; you have or used to have a relationship involving your dependence on the ongoing paid or unpaid care of the defendant; you are or have been a relative of the defendant (this does not need to be a blood relative, it can be a relative in law ); or in the case of an Aboriginal person or Torres Strait Islander, you are or have been part of the extended family or kin of the defendant according to the Indigenous kinship system of your culture. How do I get an ADVO? You can apply for an ADVO through the Local Court or the Children s Court. The court may only give you an ADVO if you, or the other person whom the ADVO is aimed at protecting: 1 are in or have been in a domestic relationship with the defendant; 2 fear the defendant will be violent towards you (or the other person) or that they will stalk, intimidate or harass you (or the other person); and 3 have a reasonable ground to fear that behaviour from the defendant. Who does an ADVO protect? The ADVO will provide protection for anyone named in the ADVO, including children. It is common for a child to be named in an ADVO if they live with an adult who is named and protected under that ADVO. HOW DO I APPLY FOR AN ADVO? There are two ways to apply for an ADVO: 1 The police may apply on your behalf (police application). 2 You may apply at your local court or the children s court (private application). Page 2

3 Police applications The police may make an application for an ADVO on your behalf if: you are under 18; you have an intellectual disability; you have been the victim of violence; or there is a significant threat of violence to you. The police must make an application for an ADVO if they suspect or believe there has been domestic violence, stalking, intimidation, or child abuse. If your situation involves intimate partner domestic violence, the NSW police must also complete the Domestic Violence Safety Assessment Tool under the Safer Pathways program. This is a form which includes information about: the relationship between you and your partner; the background of your partner; any children in your household; and any violence or assault incidents. The NSW police will refer you (if you are female) to the Women s Domestic Violence Court Advocacy Services (WDVCAS) if they consider you are at threat or at serious threat. WDVCAS can assist with your immediate safety needs by providing information, coordinating your case and contacting local support services on your behalf. The Safer Pathways program is being rolled out across different parts of NSW from If you need urgent protection a police officer may apply for a Provisional ADVO. A Provisional ADVO provides protection until the court can decide whether it should give you a Final ADVO. Breaching a Provisional ADVO is a criminal offence, and has the same penalties as breaching a Final ADVO. Private applications To apply privately for an ADVO you must be over 16 years old. If you are under 16 years old, then only the police may make the application on your behalf. You can apply for an ADVO with one or more other people. You can also apply on behalf of someone you have a domestic relationship with, including a child who may be affected by domestic violence. In an ADVO application, you can include the names of any children who live with, or depend on an adult seeking protection. You should follow the steps below if you want to obtain an ADVO: 1 Contact your Local Court or the Children s Court You can apply for an ADVO at the Local Court or Children s Court. Each court works differently so it is best to contact the court to see what you need to do to make an application. 2 Fill in the ADVO application form and give it to the court registry Certain details are required to complete the application form. Court registry staff may be able to assist you with this process. You need to know the name and address of the defendant, so that the ADVO application can be served (given to) the defendant. You will also have to give details about: your relationship with the defendant and whether you have any children; if there are ongoing Family Law Court proceedings between you and the defendant; details of the events which have caused you to fear the defendant; details of any police reports; details of medical treatment received as a result of incidents with the defendant; and any previous court orders made to protect you from the defendant. Page 3

4 3 Serve the application The defendant must be given a copy of the application. When you make your application at the court you should ask whether they can arrange for the police to give the application to the defendant. If the court will not arrange this, you will need to ask the police to do this yourself. 4 Attend court dates It is important that you attend all the court dates. For more information about attending court, see pages 5-6 of this factsheet. Do I need a lawyer? How much does it cost? Do I need a lawyer? Police Applications No. If the police make the application for the ADVO you do not need a lawyer. The police prosecutor will act on your behalf during the court proceedings. Private Applications It is up to you if you would like a lawyer to assist you when applying for an ADVO. There are a variety of people and services which may be able to assist you throughout the process. See the end of this factsheet for a list of referrals and resources. Does it cost money to make an application? Police Applications No. It does not cost any money if the police make the application for the ADVO on your behalf. Private Applications If your application for an ADVO is not successful, the defendant can ask for the court to make an order for you to pay their legal costs. A court will not make an order for you to pay the defendant s legal costs unless the court thinks that your application for an ADVO was frivolous or vexatious. For example, there was no reasonable cause for the application to have been made, or it was made just to annoy or embarrass the defendant. When must the court make an ADVO? There are some situations where the court must make an ADVO, even if you have not applied for one. For example, if the defendant is charged with, or is found guilty of, a serious offence then an ADVO must be made unless the court is satisfied that an ADVO is not required. A serious offence is one involving violence, indecent or sexual conduct, stalking or intimidation. Page 4

5 WHAT IF I AM NAMED AS A DEFENDANT IN AN ADVO APPLICATION? Sometimes the person who is named as a defendant in an ADVO application is actually a victim of violence and intimidation. This can happen where the person making the application: has told the police that he or she is in fact a victim; or is making the application in response to an ADVO application made against them (that is, a cross application ). If you are named as a defendant in an ADVO application then you may wish to seek legal assistance. The contact details of organisations which offer legal support to victims of violence (including those who have been named as a defendant in an ADVO application) can be found in the Helpful Contacts section on page 11 of this factsheet. If you are named as a defendant in an ADVO application, you must make sure that you understand what the application says and what you are required to do. You should check the dates that you must attend court and make sure you understand the conditions. There are a number of different ways you can respond to an ADVO application: consent without admission this means that you agree to the ADVO being made, but do not admit what the other person says has happened. ask for an adjournment this means coming back to court on a later date. give an undertaking this means you make a formal promise that you will not do the things listed on the ADVO. An undertaking is different from an ADVO because it is not legally enforceable. not agree to the conditions of the ADVO if you do not agree to the application, then the next step will be the hearing where you will be asked to explain why you do not agree with the application. Being named as a defendant on an ADVO does not mean you have a criminal conviction. However, if you breach a condition of an ADVO, this is a criminal offence which may result in you being fined or imprisoned. For more information about the consequences of breaching an ADVO see page 8 of this factsheet. WHAT HAPPENS AT COURT? Once an application has been filed with the court and served on (given to) the defendant then the next step is to attend court. Your ADVO application will be placed on a court list, usually within a few weeks. The flowchart on page 7 sets out the court process. Page 5

6 Court etiquette There are some basic guidelines that you should follow when attending court: 1. The court is a formal place, so you should dress appropriately. 2. You cannot bring any food or drink into the courtroom. 3. Before entering the courtroom, turn off all electronic equipment including your mobile phone. 4. When entering and existing the courtroom, you must bow in the direction of the judicial officer. 5. Each time court begins or adjourns, you must stand up. The court staff will announce this for you. 6. The person hearing your case will either be a judge or a Registrar. You should address a judge as Your Honour and a Registrar as registrar. For more information about court procedures, please look at the Self-Represented Litigants in the Family Courts factsheet. In particular, see page 8 of the factsheet for more etiquette guidelines about going to court. Page 6

7 Apply for an ADVO Police application Private application If you need urgent protection, the police can apply for a Provisional ADVO Police give the ADVO to the defendant First court date ( the mention ) Defendant attends court and agrees to the ADVO s conditions Defendant attends court but does not agree to the ADVO s conditions Defendant attends court and asks for an adjournment. For example, to obtain legal advice Defendant does not attend court Final ADVO is made If you require protection before the final order is made, you can apply for an Interim ADVO If you require protection before the final order is made, you can apply for an Interim ADVO Matter may be adjourned to a later date Final ADVO may be made The hearing both sides given an opportunity to give their version of events Final ADVO may be made Application may be dismissed Page 7

8 WHAT IS INCLUDED IN THE ADVO? An ADVO is designed to protect you by restricting the behaviour of the defendant. To do this the ADVO will list a number of conditions (called orders) about what the defendant cannot do. There are two types of orders: 1 mandatory orders; and 2 additional orders. When you apply for an ADVO, you can request that your address not be included on the ADVO. Mandatory orders All ADVOs prohibit the defendant from: assaulting, molesting, harassing, threatening or otherwise interfering with you or a person with whom you have a domestic relationship; engaging in any other conduct that intimidates you or a person with whom you have a domestic relationship; and stalking you or a person with whom you have a domestic relationship. A mandatory order is to prevent violence and harassment. If you wish to, you can still have a relationship or live with the defendant named in an ADVO. Additional orders To make sure that the ADVO suits your particular circumstances, the court may make additional conditions in the ADVO. For example, the ADVO may say that the defendant is not allowed to: approach you when they have been drinking or taking drugs; and destroy or damage your property. When you or the police apply for the ADVO you should consider what kind of additional orders may be necessary for your situation. Changing ADVO conditions To change an ADVO, you must make an application to the court by filling out an Application to Vary or Revoke Apprehended Violence Order form. WHAT DO I DO IF THE ADVO IS BREACHED? A breach occurs when the defendant does something which is not allowed under the ADVO conditions. Breach of an ADVO is a criminal offence and should be reported to the police. How do I report a breach? You can report a breach of the ADVO to the police either over the phone or in person at the police station. When you report the breach to the police, you will be asked to give a statement about what happened. It may be helpful to keep a record of important details such as the date, time and place, what happened, evidence of text, or phone messages, records of any injuries, and the names of any witnesses. If there is a Domestic Violence Liaison Officer (DVLO) you may wish to speak to them. You can also ask a support person (for example a friend or family member) to come with you when you report the breach. approach you; come to your home, work address or your child s school; Page 8

9 After reporting the breach, you should keep a record of the name of the investigating police officer and the Event Number. Legal Aid NSW, the WDVCAS (for women) or Safe Relationships Project (for people who identify as LGBTIQ) can provide support for reporting a breach, and any follow-up police or court action. What should I expect from the police when reporting a breach? The police are responsible for investigating all reported breaches of ADVOs. Once the police have investigated your report they may decide to charge the defendant. If this happens, you may need to go to court to give evidence against the defendant. If the police decide there is not enough evidence to charge the defendant, the police must make an official record of their reasons. You should keep evidence of the breach, such as doctor s reports, photographs, letters, s and voice messages. You should also keep a record of your report to the police (such as a diary entry or notes) or have a support person present when reporting the breach. If the police do not investigate the breach, you can seek support from Legal Aid NSW, the WDVCAS (for women) or Safe Relationships Project (for LGBTIQ people). What happens if the defendant breaches the ADVO? An ADVO is a court order, and not a criminal conviction. This means that the ADVO does not give the defendant a criminal record. However, if the defendant knowingly breaches a condition of an ADVO, they have committed a criminal offence. If convicted, the defendant may be fined up to $5,000 and/or imprisoned for up to two years. Breach of a provisional or an interim ADVO carries the same penalties as breach of a final ADVO. ADVOs INSIDE AND OUTSIDE NSW The protection provided by ADVOs is limited to the state or territory in which the court order was made. For example, an ADVO made in NSW provides protection only in NSW. What if the ADVO is made in NSW, but I want to move away? If the ADVO was made in NSW but you want to move to another state or territory, then you can register the ADVO in other Australian states or territories, or in New Zealand. To understand the process, speak to police in the state or territory you move to, the WDVCAS (for women) or the Safe Relationships Project (if you identify as LGBTIQ) (contact details on page 11 of this factsheet). What if I want to move to NSW? A court order made in another Australian state or territory (or in New Zealand) may be registered in NSW. An order made outside of NSW is called an External Protection Order. You need to apply to a local court to register an External Protection Order in NSW. What are family violence orders? The term family violence order is used in the Family Court system to refer to ADVOs. The Family Law Courts can make parenting orders that are different to ADVOs that are already in place. If this happens, the ADVO might need to be changed. For more information about orders made by the Children s and Family Courts, please look at the Child Protection factsheet. In particular, see page 7 of the factsheet for the interaction between family violence orders (ADVOs) and orders made by the Family Court. Page 9

10 ADVOS AND CHILDREN ADVOs and the safety of children When deciding whether or not to make or change an ADVO, the court will consider the safety and protection of any children directly or indirectly affected by the domestic violence. Parenting Orders When deciding whether to make or vary an ADVO, the court has the power to change an existing parenting order. However, the court will not change the parenting order unless there is new evidence or material which was not available when the original parenting order was made. If there are parenting orders, or you are going through the process of getting parenting orders, you must tell the court. Page 10

11 HELPFUL CONTACTS Organisations that can help answer questions about ADVOs: NSW Police (in an emergency) 000 NSW Police Assistance Line Women s Legal Service NSW (women only) (02) Domestic Violence Line Women s Domestic Violence Court Advocacy Service (women only) To find information about WDVCAS services in your local area go to Indigenous Women s Legal Contact Line (02) Safe Relationships Project (LGBTIQ domestic violence legal support and advocacy) (02) Legal Aid NSW National Sexual Assault, Domestic Family Violence Counselling Service 1800 RESPECT / Page 11