Domestic violence 2013 HOT TOPICS 87 THIS ISSUE: _ What is domestic violence? _ Apprehended violence orders _ AVO court process _ Family law and DV
87 2013 Domestic violence 1 OVERVIEW OF DOMESTIC VIOLENCE What is domestic violence? the cycle of violence How prevalent is domestic violence? domestic homicide children and young people older people reporting to police the beginning of refuges community attitudes to domestic violence government responses to domestic violence accessibility of services. 5 APPREHENDED VIOLENCE ORDERS History of AVOs Crimes (Domestic and Personal Violence) Act 2007 Are there different types of AVOs? How do you get an AVO? Comparing police and private applications When do police make AVO applications? on the spot AVOs AVOs resulting from domestic violence offences making private applications conditions in an AVO application Does a protected person need a lawyer? Is legal aid available for AVOs? 11 THE AVO COURT PROCESS The first court date preparing for a hearing the hearing interpreters What happens after an AVO is made? costs firearms consequences of breaching an AVO working with children check Can a final AVO be changed? appeals, annulments and reviews how AVOs interact with family law. 17 AVOs IN OTHER STATES Registering a NSW AVO in another state registering a protection order made in another state protection orders in other states and territories. 20 VICTIMS SUPPORT Counselling financial assistance for immediate needs financial assistance for economic loss recognition payment personal injury claim. 22 FAMILY LAW Family violence amendments DV and mediation injunctions for personal protection domestic violence and the home. 24 OTHER LEGAL ISSUES Domestic violence and renting domestic violence and employment. 26 INFORMATION AND ADVICE Culturally and linguistically diverse (CALD) Deaf/hearing or speech impairment assistance, referrals, information and legal advice LGBTIQ services, publications. This is the eighty-seventh issue in the series Hot Topics: legal issues in plain language, published by the Legal Information Access Centre (LIAC). Note: This issue is the last for the 2013 subscription year, however the content is up-to-date as of June 2014, which is the actual publication date. Hot Topics issues have provided an accessible introduction to areas of law that are the subject of change or public debate since the first issue in 1994. This will be the final print issue for the series, but issues can be accessed online at www.legalanswers.sl.nsw.gov.au AUTHOR NOTE Women s Legal Services NSW is an independent not for profit community legal centre that aims to achieve access to justice and a just legal system for women in NSW. WLS NSW seeks to promote women s human rights, redress inequalities experienced by women and to foster legal and social change through strategic legal services, community development, community legal education and law and policy reform work. WLS NSW provides specialist legal services relating to domestic and family violence, sexual assault, family law, discrimination, victims support, care and protection, human rights and access to justice and services are prioritised for women who are disadvantaged by their cultural, social and economic circumstances. Cover image: PhotoNonStop, Glow Images Australia. EDITOR: Cathy Hammer Disclaimer: Hot Topics is intended as an introductory guide only and should not be interpreted as legal advice. While every effort is made to provide the most accurate and up-to-date information, the Legal Information Access Centre does not assume responsibility for any errors or omissions. Copyright: Copyright in Hot Topics is owned by the Library Council of New South Wales. Material contained herein may be copied for the non-commercial purpose of study or research, subject to the provisions of the Copyright Act 1968 (Cth). HOT TOPICS ISSN 1322-4301, NO. 87 Photos: Fairfax Syndication, pages 3, 10, 15, 17 & 19; Age Fotostock, pages 7, 8, 13, 21, 24 & 25; DW Stock Picture Library, pages 20 and 23. DESIGN: Bodoni Studio
Overview of domestic violence Domestic violence is one of the most widespread human rights abuses in Australia and globally. Whatever form the violence takes, it has serious and often devastating consequences for victims, their extended families and the community. Domestic violence puts more women aged 15-44 at risk of ill-health and premature death than any other risk factor. 1 Domestic violence is the biggest single cause of homelessness among women and children. 2 It also comes at an enormous economic cost. Each year violence against women costs the nation $13.6 billion. This figure is expected to rise to $15.6 billion by 2021. 3 For a very long time domestic violence was seen as a private matter. The feminist movement in the 1970s supported women to speak out strongly against domestic violence and agitate for services such as women s refuges. Progress in eliminating violence against women has been slow and the legal and public policy environment has struggled to keep pace with the need for change. WHAT IS DOMESTIC VIOLENCE? Domestic violence is about power and control. Research shows that the vast majority of domestic violence is perpetrated by men against women and children. 4 In a small number of cases, domestic violence is perpetrated by women against men and children. Domestic violence also occurs in same-sex relationships. Domestic violence is also termed family violence or intimate partner violence/abuse. Domestic violence encompasses a range of behaviours and can include but is not limited to some of the following tactics: > > intimidation including threats to injure or kill a victim and/or their children and relatives, injuring or killing pets, damaging personal property, throwing objects, making repeated telephone calls and misuse of social media; > > harassment including making repeated telephone calls, repeated hang-ups, sending repeated SMS text messages, emails, letters or gifts; > > emotional and psychological abuse including namecalling, swearing, put-downs, and threats of suicide or self-harm; > > financial abuse including controlling access to finances and depriving a victim of access to funds for basic needs for themselves and the family, such as food, clothes, school items and transport. Can also include questioning the victim on money spent, asking for receipts or making allegations that the victim is either incapable of managing money or accusing the victim of spending on unnecessary items; > > stalking including following a victim to their home, or place of work; or places they often attend, for example, shopping centres, clubs, or fitness centres, childcare centres or schools the victim s children attend; > > social and geographical isolation including preventing a victim from seeing or contacting family and friends, restricting their ability to leave the home, using public transport or a car, using the telephone or the internet, isolation may be geographical where the perpetrator coerces the victim to move somewhere they are unable to leave easily without the perpetrator s help and consent; > > physical assaults including punching, hitting, slapping, shoving and strangling or attempts to do anything like this; and > > sexual assault including sexual intercourse or other sexual acts without a victim s consent. CASE STUDY Clara and James are in year 11 at high school. Recently James has started to get very jealous of Clara anytime she tries to talk with any of her friends and is starting to yell at her and has even grabbed her a few times in anger. James and Clara have been sexting each other during their relationship and James threatens Clara that if she continues to talk with friends other than him, he will post a nude photo of her on Facebook to humiliate her. Clara is so scared of this she stops talking with all her friends. THE CYCLE OF VIOLENCE The theory that domestic violence occurs in a cycle was developed in 1979 by Lenore Walker 5 as a result of a study conducted in the United States. The cycle of violence depicts how violent events occur within a context of power and control. Many women who have experienced violence 1. www.whiteribbon.org.au/white-ribbon-importance, accessed 23 June 2014. 2. www.dvnsw.org.au/downloads/ghshsubmission_wrm_final.pdf 3. National plan to reduce violence against women and their children 2010 2022, http://www.dss.gov.au/sites/default/files/ documents/05_2012/national_plan.pdf 4. Domestic and family violence studies, surveys and statistics: pointers to policy and practice Stakeholder paper May 2007, Australian Domestic & Family Violence Clearinghouse. 5. The battered woman, Lenore Walker, Harper and Row, 1979. Overview of domestic violence 1
recognise this pattern, which can happen hundreds of times in an abusive relationship. Each stage lasts a different amount of time in a relationship. The total cycle can take anywhere from a few hours to a year or more to complete. Over time the cycle may become quicker or even start to skip the honeymoon phase. It is important to remember though that not all domestic violence relationships fit the cycle. THE HONEYMOON An apparent period of normality, thinking it won t happen again. THE BUY BACK Expressions of remorse. Promises not to do it again or to seek help. BUILD UP Tension and anger rise. Efforts to control feelings or to manage his moods. In 1984, the Domestic Violence Intervention project developed the Power and Control Wheel. 6 Commonly known as the Duluth model, it illustrates the pattern of actions and behaviours used by a violent man to control his female partner. Power and control are at the centre of the wheel and extending from the centre (like spokes) are the range of techniques used to instill fear; threats, intimidation, coercion, emotional abuse, economic abuse, isolation, minimising, denying and blaming, using children, and using male privilege. All of this occurs within the context of physical and sexual violence the rim of the wheel. HOW PREVALENT IS DOMESTIC VIOLENCE? THE ATTACK Normally an outburst of verbal and/or physical abuse. THE AFTERMATH Feelings of regret, despair, relief, shame, excuses from the man. Around one in three Australian women have experienced physical violence since the age of 15 and almost one in five have experienced sexual violence. For Indigenous women and girls, this statistic is much higher. 7 The 2012 Personal Safety Survey provides information about the nature and extent of violence experienced by men and women since the age of 15. The survey found that 17% of women (1,479,000) and 5.3% of men (448,000) had experienced domestic violence since the age of 15. The survey also found that 25% of women and 14% of men have experienced emotional abuse by a partner since the age of 15. There has been no significant change in the proportion of men or women who experienced partner violence since the last Personal Safety Survey in 2005. 8 The Australian Institute of Criminology published the Australian component of the International Violence Against Women Survey (IVAWS). 9 A total of 6677 women aged between 18 and 69 were interviewed about the violence they had experienced in the 12 months before the survey; five years prior to the survey; and in their lifetime since the age of 16. It was reported that: > > in the 12 months preceding the survey, 10% of the women surveyed reported experiencing at least one incident of physical and/or sexual violence; > > 57% of the women surveyed reported experiencing at least one incident of physical or sexual violence over their lifetime; > > 34% of women who had a current or former partner experienced at least one form of violence during their lifetime from a partner; > > women reported higher levels of violence from former partners (36%) than current partners (10%). This is in line with research that suggests that women with a current intimate partner are less likely to report experiences of violence from that partner; and > > 37-40% of women in current relationships reported experiencing at least one type of controlling behaviour from their intimate partner (eg name calling, insults, limiting contact with friends or tracking whereabouts). DOMESTIC HOMICIDE Approximately 40% of all homicides in NSW are domestic violence related. 10 In NSW in the 12 months to September 2012, around three-quarters of female homicide victims (27 out of 35) were killed by someone with whom they had a domestic relationship. Female homicide victims are 2.5 times more likely than male victims to be killed by someone with whom they have a domestic relationship. 11 The majority of victims are women and young children. CHILDREN AND YOUNG PEOPLE Children and young people are affected by being exposed to domestic violence. Exposure to domestic violence includes seeing or hearing the violence, helping to clean up property damage or being present when police and/or ambulance attend. Over a third of women who experienced violence by a previous partner (34%) said their children had witnessed the violence. A national survey of 5000 young people aged 12-20 years found that 23% of participants had witnessed physical domestic violence against their mothers. 12 6. www.theduluthmodel.org/training/wheels.html accessed 23 June 2014. 7. National plan to reduce violence against women and their children 2010-2022. 8. Personal safety survey 2012, Australian Bureau of Statistics, Catalogue No. 4906 Canberra, released end 2013. 9. Women s experiences of male violence: findings from the Australian component of the International Violence Against Women Survey IVAWS, J Mouzos and T Makkai, 2004, Research and public policy series no.56, Australian Institute of Criminology, Canberra. See www.aic.gov.au/publications/rpp/56/13_appendix1.html 10. Code of Practice for NSW Police Force for Response to Domestic and Family Violence, NSW Police, 25 November 2013. 11. NSW Bureau of Crime Statistics and research, NSW Recorded Crime Statistics, (unpublished) BOCSAR ref. Dg12/10965, nm1311039 12. ADFV Fast Facts No.4: The Impact of Domestic Violence on Children and Infants, R Campbell, 2011, http://www.adfvc.unsw.edu.au/ PDF%20files/Fast_Facts_4.pdf 2 HOT TOPICS 87 > Domestic violence
OLDER PEOPLE Older people are at risk of domestic violence from family members, partners and carers. Older women are particularly at risk of financial abuse, physical abuse and sexual abuse 13 and 26% of women aged 55 years and over have experienced violence from their current partner. 14 A study conducted by the Law and Justice Foundation of NSW in 2004 indicated that the vast majority of perpetrators of violence against elders have been identified as close family members who live with the victim, often an adult child. 15 REPORTING TO POLICE Approximately 40% of a police officer s work involves responding to domestic violence. 16 In the 12 months before September 2013, there were almost 30,000 domestic violence related assaults reported to police in NSW, representing approximately 43% of all assaults reported to police. 17 Women and girls make up 69% of victims of domestic violence related assaults. 18 A 2012 report shows 23,917 ADVOs granted in NSW. 19 However, research shows that less than half of all victims of domestic violence report incidents to the police. 20 Reasons for not reporting include: > > having fears for the future safety of themselves/their children; > > threats from the perpetrator; > > embarrassment and shame; > > isolation; > > the hope that the violence will stop; > > a view that the incident was not serious enough; and > > a view that the police would/could not do anything about the violence. 21 Research has also shown that a woman is much less likely to report to police if she is pregnant at the time of the incident or if there have been more than five previous incidents of abuse by the same person. 22 The 2012 Personal Safety Survey showed that of the 536,900 women who contacted police about domestic violence by a recent ex-partner, approximately 50% had an order in place for her protection at the time of the incident. Of those women who had a protection order, 58% experienced further violence. This tells us that if a woman experiences violence from her partner it is likely to happen more than one time in that relationship, including after separation. THE BEGINNING OF REFUGES The Elsie Refuge for women and children was a women s refuge set up in Glebe in 1974. Feminist activists squatted in a public housing property as a protest against the lack of services. The Whitlam government provided funding in 1975. The refuge was the first of its kind, providing not just crisis accommodation but adopting a feminist perspective in helping women escape domestic violence. Elsie, women s refuge, Westmoreland Street, Glebe, Sydney, October 1974. Nigel McNeil, Fairfax Syndication. COMMUNITY ATTITUDES TO DOMESTIC VIOLENCE Positive and respectful community attitudes are critical for reducing domestic violence. 23 Evidence shows that there is an increased risk of violence against women where norms support the traditional gendered power-imbalance or notion of male privilege including: 24 > > macho constructions of masculinity; > > ideas that a woman s place is in the home ; > > notions that men should wear the pants as heads of the household and wage-earners; > > standards that segregate male drinking and encourage excessive or binge drinking; and > > standards that create peer pressure to conform to these ideas of masculinity and male behaviour. A long-term commitment to education and eradication of these social norms is necessary to effect change. 13. Preventing The Abuse Of Older People By Their Family Members, Bagshaw, Wendt, Zannetino, September 2009, ADFV Stakeholder Paper No 7, http://www.adfvc.unsw.edu.au/pdf%20files/stakeholder%20paper_7.pdf 14. ABS Personal Safety Survey 2006. 15. The legal information needs of older people, S Edwards & A Fontana, 2004 Law and Justice Foundation, Sydney. 16. NSW Police Assistant Commissioner Mark Murdoch, the corporate spokesman on domestic violence, March 2014. 17. NSW recorded crime statistics, September 2013. 18. 19. NSW Bureau of Crime Statistics and Research reports (BOSCAR 2012). 20. Trends and patterns in domestic violence assaults: 2001 to 2010, (Crime and justice statistics no. 61) (2011) K Grech and M Burgess, http://www.bocsar.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwfiles/bb61.pdf/$file/bb61.pdf 21. Against the odds: how women survive domestic violence (Office of Status of Women, Canberra, 1998); Women s experiences of male violence: findings from the Australian component of the International Violence Against Women Survey IVAWS, J Mouzos and T Makkai, 2004, Research and public policy series no.56, Australian Institute of Criminology, Canberra; Australian Bureau of Statistics 2006. Crime and safety, Australia 2005. 22. Reporting violence to police: a survey of victims attending domestic violence services, Emma Birdsey and Lucy Snowball, BOCSAR Issue paper no 91, October 2013. 23. National Plan to reduce violence against women and their children 2010 2022, www.dss.gov.au/sites/default/files/documents/05_2012/ national_plan.pdf 24. Time for Action: The National Council s Plan for Australia to Reduce Violence against Women and their Children, 2009-2021, March 2009. Overview of domestic violence 3
GOVERNMENT RESPONSES TO DOMESTIC VIOLENCE In 2008 the Commonwealth government established the National Council to Reduce Violence against Women and their Children (the National Council) to advise on the development of an evidence-based national plan. The National Council identified the main problems with the current system and presented its recommendations in March 2009 in a report called Time for action: the National Council s plan for Australia to reduce violence against women and their children, 2009-2021. National Plan to reduce violence against women and their children The National Council made clear statements about the need for political will, sustainability and the need for governments to work together to ensure that any plan of action is successful. Following this, the Commonwealth responded by developing the first National plan to reduce violence against women and their children 2010 2022 25 (National Plan) which was released on 15 February 2011 and endorsed by the Council of Australian Governments (COAG). The National Plan provides the framework for action by the Commonwealth, state and territory governments to reduce violence against women and their children. The National Plan has six broad outcomes: 1. communities are safe and free from violence; 2. relationships are respectful; 3. Indigenous communities are strengthened; 4. services meet the needs of women and their children experiencing violence; 5. justice responses are effective; and 6. perpetrators stop their violence and are held to account. NSW domestic violence policy framework In 2014, the NSW government launched its initiative for domestic and family violence reform in a document called It Stops Here. Standing together to end domestic and family violence in NSW. 26 The NSW DV policy framework aims to provide a coordinated response to domestic violence, improve risk identification as well as strengthen prevention and early intervention. Changes to the law about how personal information can be shared in the context of domestic violence and the introduction of Safety Action Meetings (two launch sites at Waverley and Orange) are due to be implemented after July 2014. Domestic Violence Death Review Team In 2010, the Domestic Violence Death Review Team was established in NSW. The role of the team is to review homicides and deaths that occur within the context of domestic violence with a view to identifying systemic causes of domestic homicide and to contribute to the prevention of domestic violence deaths in New South Wales. Changes to the Family Law Act In 2012, the definition of family violence in the Family Law Act 1975 was expanded and changes were made to prioritise the safety of children when making decisions about who children live with and spend time with after separation. For a summary of these changes and the expanded definition of family violence see Family law, page 22. ACCESSIBILITY OF SERVICES There are many psychological and practical barriers faced by women who are victims of domestic violence when dealing with domestic violence services and the legal system. These may include: > > fear of reprisal; > > feelings of shame; > > responsibility for children; > > concerns about financial consequences; and > > lack of knowledge of the legal system. It is also recognised that some groups of women may face additional barriers in dealing with the legal system, due to their race, ethnicity, sexuality, and/or disability. It may be that a woman s background means that she faces a complex range of barriers, for example, an immigrant woman who has a disability may face barriers because of her immigrant status and because of her disability. Some additional barriers to culturally and linguistically diverse (CALD) victims of domestic violence include: > > cultural mistrust of police and legal systems; > > cultural stigma and risk of being rejected by family and communities in which they are settled; > > language barriers; > > reliance/perceived reliance on abusive partner for visa/ immigration and for financial support; and > > lack of family and other support systems to assist them in leaving the situation particularly where there are children born to the relationship. Services need to be equipped to reach out to all victims of violence to ensure equity in accessing assistance. PETS AND DOMESTIC VIOLENCE It is common in domestic violence situations for a perpetrator to threaten or even harm pets. As a result of this some women delay leaving a violent relationship out of fear for the safety of their pets. Many women s refuges, are unable to accommodate pets but there are some temporary housing options for pets of people who have escaped domestic violence. One program is Safe Beds for Pets through the RSPCA on (02) 9782 4408 or email safebeds@rspcansw.org.au. 25. National plan to reduce violence against women and their children 2010 2022, http://www.dss.gov.au/sites/default/files/ documents/05_2012/national_plan.pdf 26. http://www.women.nsw.gov.au/ data/assets/file/0003/289461/it_stops_here_final_feb2014.pdf 4 HOT TOPICS 87 > Domestic violence
Apprehended Violence Orders An Apprehended Violence Order (AVO) is a court order that aims to protect a person by restricting or prohibiting another person s behaviour. An AVO can be made based on a person s fear of unwanted conduct from another person towards them in the future including physical violence, intimidation, stalking, harassment or threats. AVOs are sometimes called restraining orders because an AVO restrains (stops) a person (the defendant) from doing something towards the fearful person ( the protected person ). For example, an AVO cannot order a defendant to complete an anger management course, or drug and alcohol rehabilitation. Instead, an AVO can prohibit a defendant from doing something, such as assaulting, intimidating, harassing or threatening the protected person or going to places where the protected person lives or works. The law relating to AVOs in NSW is set out in the Crimes (Domestic and Personal Violence) Act 2007 (NSW). HISTORY OF AVOs In 1982, the Crimes Act 1900 (NSW) was amended by the Crimes (Domestic Violence) Amendment Act 1982 (NSW) to introduce apprehended domestic violence orders in NSW. AVOs could be made for the protection of a person living in a marriage or those living together as husband and wife on a bona fide domestic basis. In 1983, the protection was extended to cover those who had previously been married or living in a de facto relationship in recognition of the fact that violence frequently occurs after separation. In 1989, amendments extended the cover of persons eligible for protection under an ADVO to include a broad range of domestic relationships. In 2007, the law about AVOs was removed from the Crimes Act 1900 into a stand-alone Act, the Crimes (Domestic and Personal Violence) Act 2007 (NSW). In 2011, the NSW Department of Attorney General and Justice commenced a statutory review of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The report into that review is yet to be released but it is expected there will be further changes to the laws around ADVOs in response to the review. CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 The principal legislation relating to domestic violence offences in NSW is the Crimes (Domestic and Personal Violence) Act 2007. The objects of the Act state that Parliament recognises that: Domestic violence extends beyond physical violence and may involve the exploitation of power imbalances and patterns of abuse over many years. The Act defines a domestic violence offence as a personal violence offence committed by a person against another person with whom the person who commits the offence has or has had a domestic relationship. 27 A personal violence offence is defined as being an act of intimidation or stalking within the meaning of sections 7 or 8 of the Crimes (Domestic and Personal Violence) Act 2007 or any of the criminal offences under Crimes Act 1900 listed in section 11 of the Crimes (Domestic and Personal Violence) Act 2007. ARE THERE DIFFERENT TYPES OF AVOs? There are two types of AVOs, differentiated by the nature of relationship between the protected person and the defendant: > > the first type is called an Apprehended Domestic Violence Order (ADVO); and > > the second type is called an Apprehended Personal Violence Order (APVO). Note: This publication is about domestic violence, so we will mostly be referring to ADVOs but will use the general term AVO for simplicity. Apprehended Domestic Violence Orders (ADVOs) An ADVO is made when the protected person is, or has been, in a domestic relationship with the defendant. Domestic relationship is broadly defined to include marriage and de facto partnerships; intimate personal relationships; people living in the same household; long term residents in the same residential facility; carers; relatives; and extended family or kin in the case of Aboriginal Australians. It does not matter whether the relationship is past or current. 28 27. Crimes (Domestic and Personal Violence) Act 2007 (NSW) section 4. 28. Crimes (Domestic and Personal Violence) Act 2007 (NSW) section 5. Apprehended Violence Orders 5
Apprehended Personal Violence Orders (APVOs) An APVO is made when the protected person and defendant are not in a domestic relationship with each other for example, neighbours, people who work together, or strangers. HOW DO YOU GET AN AVO? The first step in the AVO process is to make an application. The person making an AVO application is called the applicant. The person to be protected by the AVO is known as the protected person. A protected person can seek an AVO in two ways: > > By going to their local police station and asking the police to make an application. This is known as a police application and the police officer is the applicant; or > > By going to their closest Local Court and making an application through the registrar. This is known as a private application and the protected person is the applicant. Only a person 16 years or over can make a private application. COMPARING POLICE AND PRIVATE APPLICATIONS There are some important differences between private and police applications. Police applications Police officer is the applicant Police have a duty to apply for an ADVO in certain circumstances Often police will not initiate APVO applications Only police can apply for urgent provisional AVOs Only police can apply for an AVO on behalf of a person under 16 years old Police prosecutor appears in court on behalf of protected person Private applications Protected person is the applicant Registrar must accept the application for an ADVO Registrar may refuse to issue an APVO application Individual cannot seek a provisional order through the court A young person under 16 years old cannot make a private application Applicant has to represent themself in court or find a solicitor (help available from Women s Domestic Violence Court Advocacy Service (WDVCAS) WHEN DO POLICE MAKE AVO APPLICATIONS? Under the Crimes (Domestic and Personal Violence) Act 2007 a police officer must apply for an AVO if they believe a domestic violence offence has recently been committed, or is being committed, or is likely to be committed. A domestic violence offence is defined in the Act as being a personal violence offence committed against someone with whom the defendant has a domestic relationship. If the defendant has been charged with a domestic violence offence, then the police have a duty to apply for an AVO for the person s protection. If police decide not to apply for an AVO in these circumstances, they should record their reasons in writing. In other cases, if police are satisfied the person requires protection they have discretion to make an AVO application even if they are not required to do so by the legislation. If a person does not want the police to make an application, the police may still do so if they reasonably believe the person has been a victim of violence or there is a threat of violence or if the person has an intellectual disability and no guardian. ON THE SPOT AVOs If a person needs urgent protection, police can apply for an urgent provisional AVO ( on the spot AVOs ) to provide protection until the first court date. A provisional AVO is a temporary order, usually in force for a maximum of 28 days. Like all AVOs, the order can only be enforced after it is given to ( served on ) the defendant by police. On 20 May 2014, the Crimes (Domestic and Personal Violence) Act 2007 was changed to grant police extra powers in relation to provisional ADVOs. Previously police had to apply for an AVO through an authorised justice. Now provisional orders can be granted by police officers of the rank of Sergeant or above. They will determine police applications based on the reasonableness of the applicant officer s belief that an immediate order is necessary to protect a person or prevent substantial property damage. This power does not extend to the making of provisional APVOs or AVOs naming police officers as defendants or protected persons. Police powers to detain a defendant for the purpose of making and serving a provisional order were also increased by the amendments to the Act. Previously police could arrest the defendant for the purpose of serving him or her with an order. Now, where police lack sufficient evidence to make an arrest, police can detain a person or control their movements through a range of specified directions such as remaining at the scene or going to the police station in the company of a police officer. There are some associated search powers related to transporting a defendant in a police vehicle. The powers are intended to ensure the safety of the protected person, including where the victim is reluctant to cooperate with police. 6 HOT TOPICS 87 > Domestic violence
AVOs RESULTING FROM DOMESTIC VIOLENCE OFFENCES If a person is charged with a domestic violence offence (for example, assault, malicious damage, sexual assault, stalking and intimidation committed by someone with whom the victim was in a domestic relationship), then the court must make an interim AVO for the person against whom the CASE STUDY Rosalita moved to Australia 18 months ago when she married William. They have a three month old boy. They live in a rented apartment leased in William s name. About eight months ago, when Rosalita was four months pregnant, William started to push her around when he got angry. He hit her and slapped her in the face. She can remember having black eyes. Last week he pushed her down on the floor and tried to choke her. She has never told anyone. William always tells her she is not allowed to go out without him and if he is not with her she has to stay home with her son. One night a couple of months ago, the police came to the apartment. Rosalita thinks the neighbours called them because of the shouting. The police talked to Rosalita but she was too frightened to say anything about William. She also felt she couldn t get the story out clearly. They spoke to William who said that Rosalita became hysterical when they argued and she shouted at him. The police left. Last Thursday night, William became enraged because Rosalita could not stop the baby crying. He pushed Rosalita to the floor and held her down with his arm tightly around her face. To try and get him to let go of her, Rosalita bit William s arm. On Friday, Rosalita had bruising to her face where he had held her and she went to the Police Station. She was very frightened because she didn t want William to find out she was there. The police officer took her statements and photos of the bruising and arranged for her to stay at a refuge with her baby. Later, the same officer rang her at the refuge and said that he had spoken to William and had been shown the bite mark on his arm. He said that William said that Rosalita had become angry at him for being home late and had attacked him and bit him and he pushed her off to get away. The police officer told Rosalita she was lucky he had spoken to her first otherwise he might have charged her with an assault. Because of the conflicting versions of events the officer said he could not press any charges but that he would continue with an AVO application on her behalf. The officer also said if she needed anything out of the house he could ask for an ancillary property order or, if she felt safe to leave the refuge, he could seek an exclusion order to keep William out of the house. Because the incident happened with the baby at home he would list the baby as an additional protected person but that in any event the baby would be protected under mandatory orders. offence was allegedly committed, unless the court is satisfied that an AVO is not required. 29 If a person pleads guilty or is found guilty of a domestic violence offence, the court must make an AVO for the person against whom the offence was committed unless the court is satisfied that an AVO is not required. 30 An example of this may be if there is an existing AVO. MAKING PRIVATE APPLICATIONS If police will not apply for an AVO, or a person prefers not to apply through the police, they make their own application through the registrar at the Local Court. A person can choose to make a private AVO application. There is no legal requirement to go through the police first. What information is required? The registrar will want the applicant to tell them about the incident or behaviour that has made them fearful and relevant information including an address for service on the defendant (usually a home address) and what orders the applicant is seeking. In preparing the application, the registrar will usually seek the following information: > > the nature of the relationship with the other person (for example, married, de facto, relative); > > length of relationship; Zoonar/R.Santos. 29. Section 40 Crimes (Domestic and Personal Violence) Act 2007. 30. Section 39 Crimes (Domestic and Personal Violence) Act 2007. Apprehended Violence Orders 7
> > details of recent incident or incidents that have caused fears for their safety, for example, assaults, threats, phone calls, text messages, online harassment; > > description of any previous violence or harassment or threats by the defendant; > > details of any reports to the police; > > details of treatment by medical practitioners; > > previous AVOs; > > previous charges/convictions for domestic violence offence(s); > > whether they have children together or if there are children who live with the applicant; > > has there been violence or threats toward the children; > > are there family law orders or arrangements for the children to spend time with the defendant; and > > are there proceedings currently before the Family Law Courts. This information will be typed up and is called Grounds for the Application. CONDITIONS IN AN AVO APPLICATION Applications include a list of the orders that can be tailormade for the protection required by an applicant. For example, one person might want to stop all contact with the defendant, while another might want to continue living with the defendant provided the defendant agrees to stay away for 12 hours after drinking alcohol. Three orders are automatically included in all AVOs unless the court otherwise orders. Known as mandatory orders, these prohibit the defendant from: > > assaulting, molesting, harassing, threatening or otherwise interfering with the protected person or anyone who has a domestic relationship with them; > > intimidating the protected person or anyone who has a domestic relationship with them; and > > stalking the protected person or anyone who has a domestic relationship with them. In addition to the mandatory orders, there are twelve standard orders. Not all the standard orders need to be in an AVO; only the orders necessary for the person s protection should be included in an application. Orders fall into four categories: > > exclusion orders prohibiting the defendant from residing, entering, or going within a specified distance of the protected person s home or work; > > contact restriction orders restricting the defendant from approaching, contacting or telephoning the protected person(s); > > property protection orders prohibiting the defendant from destroying or deliberately damaging or interfering with the property of the protected person; and > > orders listing additional protected persons on the AVO. A court is not bound to make standard orders; it can impose whatever restrictions or prohibitions it thinks are necessary in the circumstances for the safety and protection of the protected person and any affected children and the protected person s property. When the court makes an AVO it can make an additional order for personal property to be collected from one or the other party s premises at a specified time and in the company of a police officer or other person if need be. This is called an Ancillary Property Order. Does a protected person s address have to go on the AVO? The court must not put the home address or the address where the protected person intends to live on an AVO unless the court is satisfied that: > > the protected person is 16 years of age or over and consents to the address being stated in the order; > > the defendant knows the address; and > > it is necessary to state the address to achieve compliance with the order and the personal safety of the protected person(s) would not be seriously threatened, or damage would not be likely to be caused to any of the property of the protected person by stating the address. CASE STUDY Sam and Vic are separated. Sam is listed as the protected person in a final AVO against Vic due to domestic violence. Sam fled and Vic does not know Sam s current address which has remained undisclosed through court proceedings. Vic finds out Sam s address after logging into Sam s ebay account. Vic s car is parked outside Sam s house. Even though there is no specific order for Vic to not approach Sam s house, Sam should still call the police and report the breach of the AVO as Vic is in breach of a mandatory order must not stalk. Vic s behaviour in tracking down Sam s whereabouts is of significant concern and Sam can seek protection from the police and other domestic violence services, such as a referral to a women s refuge. Frank Siteman. 8 HOT TOPICS 87 > Domestic violence
APPREHENDED VIOLENCE ORDERS Mandatory Orders 1. (a) The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship. (b) The defendant must not engage in any other conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship. (c) The defendant must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship. Additional Standard 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:...... 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:....... 4. The defendant must not go within.......................... of the premises at which the protected person(s) may from time to time reside or work, other specified premises:...... 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, for the purpose of counselling, conciliation, or mediation. 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 parenting order under the Family Law Act 1975 unless the parenting order has been varied, suspended or discharged under section 68R of the Family Law Act 1975. 7. The defendant must not approach or contact the protected person(s) by any means whatsoever, except through the defendant s legal representative. 8. The defendant must surrender all firearms and related licences to Police. 9. The defendant must not approach the school or other premises at which the protected person(s) may from time to time attend for the purposes of education or child care or other specified premises:...... 10. The defendant must not approach the protected person(s) or any such premises or place at which the protected person(s) from time to time reside or work within twelve (12) hours of consuming intoxicating liquor or illicit drugs. 11. The defendant must not destroy or deliberately damage or interfere with the property of the protected person(s). 12. Other orders:......... Apprehended Violence Orders 9
DOES A PROTECTED PERSON NEED A LAWYER? In a police application, the Police Prosecutor will represent the protected person at court. This means that the protected person does not need their own lawyer. In a private application, the protected person will need to represent themselves or find a solicitor. The Women s Domestic Violence Court Advocacy Service (WDVCAS) may be able to arrange a lawyer free of charge for women victims of domestic violence in AVO mentions. A woman should contact the WDVCAS at her Local Court prior to the court date to confirm that a solicitor will be at court on the day to represent her free of charge. For a list of the WDVCAS and the Local Courts they attend and for referral to legal services see Information and advice on page 26. Some Local Courts may not have a funded WDVCAS, but they may have local women s organisations or other community services to assist women by providing free legal information or other services. Women s Legal Services NSW or the relevant Local Court can be contacted to ask about support options. IS LEGAL AID AVAILABLE FOR AVOs? Legal aid may be available for male or female applicants in ADVO matters provided the person satisfies a means test based on their income and assets. Flatmates are excluded from the definition of domestic relationship for the purpose of a grant of legal aid. ADVO defendants who are in fact the victim of domestic violence by the protected person may be eligible for a grant of legal aid for an AVO hearing and associated preparation provided he or she meets the means test. For all other AVO defendants, legal aid is not available unless the defendant can show exceptional circumstances. The Legal Aid NSW office should be contacted through LawAccess for confirmation of the current legal aid policy (which changes from time to time) and application form. Women s Legal Services NSW can also help with information on the availability of legal representation and can refer women to private solicitors who may be able to apply for legal aid on their behalf. It is advisable to apply for legal aid before the first court date. Barristers outside court, Sydney. Tamara Voninsk, Australian Financial Review. 10 HOT TOPICS 87 > Domestic violence
The AVO court process An AVO application contains a notice to the defendant to appear at court with the date and time they must come to the court. Once the application for an AVO is made, it must be delivered to the defendant personally by a police officer. This is known as service. Once a police officer has served the application, they fill out a statement of service and send it to the Local Court so that the court knows the defendant is aware of the application. Sometimes it is difficult to serve an application on a defendant and police may have attempted to serve the defendant on numerous occasions without success. In these cases, the court can order that the application be served in some other way, for example, by registered mail to their address or on the defendant s solicitor or a specified relative. This is called substituted service. The magistrate will only make an order for substituted service if satisfied that it is not reasonably practicable to serve the defendant personally. THE FIRST COURT DATE After the application has been made, it is usually one to three weeks before the matter is heard before the Local Court (depending upon how often the Local Court is in session, and how busy its courts are). This first court date is sometimes called the first return date. The first return date is a mention that is, a short matter listed before a magistrate. Sometimes there could be 30 to 60 other matters in the same list, depending on the court. At this first mention, the magistrate will want to know what each party wants to do about the AVO. The protected person should attend court on this date, even if it is a police application so they can let the police prosecutor know they would like to proceed with the application and if any changes to the orders are required. AVO Applications and the Court Process First Mention Defendant at court No consent to AVO Consent to AVO Defendant not at court Adjourn for exchange of statements Defendant seeks adjournment to obtain legal advice Defendant not served AVO application Adjourn for service Defendant served AVO application Mention Hearing AVO granted AVO dismissed Interim AVO Final AVO by consent Interim AVO Ex parte AVO Copyright WLS NSW 2014 The AVO court process 11
On the first court date, one of the following scenarios might occur: 1. The defendant is not present at court and has not been served with the application The AVO application will be adjourned (postponed) usually for two to four weeks to allow time for the police to serve the application on the defendant. If the protected person has fears for their safety until the next court date, the magistrate may make an interim (shortterm) AVO until the next court date. The magistrate will look at the grounds of the application and may ask for further information. The magistrate will only make an interim AVO if it is necessary or appropriate to do so. As the interim AVO is made in the defendant s absence (an ex parte interim order), it will not be enforceable until it is served on the defendant. 2. The defendant has been served with the application but has not come to court The defendant may have contacted the court if, for example, they are ill and have a medical certificate. Depending upon the excuse for non-attendance, the magistrate may decide to adjourn the AVO application to another date. If the defendant has been served, and has no reasonable excuse for the absence, the magistrate can make a final order (as opposed to an interim order) in the defendant s absence (called an ex parte order). An ex parte order is not enforceable until it is served on the defendant. Usually a final AVO is made for 12 months or two years, but it can be made for whatever period of time the magistrate thinks necessary. If no expiry is specified on the AVO, the default period is 12 months. 3. The defendant has been served with the application and is at court If the defendant has come to court, there are a number of things that may happen: (a) seeks an adjournment for legal advice If the defendant comes to court but has not had time to organise legal representation or seek legal advice, they can ask the court to adjourn the matter. A magistrate will normally allow this and will then consider making an interim order. (b) consents to the AVO If the defendant has (with or without legal advice or representation) decided to consent (agree) to the AVO he or she can consent to the order without admitting to any of the allegations made in the application. The magistrate will then usually make a final AVO by consent and without admissions. (c) consents to undertakings If the defendant does not consent to an AVO being made against them they may consent to an undertaking if the protected person agrees to withdraw the application. An undertaking is a promise to the court. Unlike an AVO, it is not a criminal offence to breach an undertaking. However, breaching an undertaking may give grounds for a further AVO application against the defendant. A protected person should seek legal advice before agreeing to an undertaking. (d) does not consent to the AVO If the defendant does not agree to (contests) the AVO being made, the magistrate will adjourn the case for further mention on another day (usually in one month s time) and follow the Directions for Listing an AVO Proceedings for Hearing (Local Court Practice Note 2 of 2012) (Practice Note) and make an order for exchange of statements. (e) the protected person may want to withdraw the AVO Sometimes the protected person may not want to proceed with the AVO application. In a private application, the applicant may seek the magistrate s leave (permission) to withdraw the application. The magistrate will want to know why the protected person wants to withdraw the application do they still have fears for their safety? Are they being pressured to withdraw the application by the defendant? If the magistrate is satisfied that the protected person is not being pressured to withdraw the application, and there are no related domestic violence offences, then the magistrate will usually allow the application to be withdrawn and will dismiss the matter. In a police application, a decision to withdraw the AVO application will depend on the police. If there is a related charge matter for a domestic violence offence, or there are children listed on the AVO the police are likely to refuse to withdraw the application. However, if the protected person has no fears for their future safety for example, if the defendant has moved overseas or interstate and is unlikely to make contact again in the future then even if the police continue with the application, the court can refuse to make the order on the basis that the person in need of protection is not fearful. 12 HOT TOPICS 87 > Domestic violence
PREPARING FOR A HEARING Witness statements The Practice Note requires the applicant to file all witness statements in support of his or her application at the court by a certain date (usually two weeks after the mention). Practice Notes are issued by courts to assist in managing cases and set out the steps people are expected to take to prepare a case for hearing. In a police application, the applicant police officer will arrange to prepare witness statements and a brief of evidence to be served on the defendant. The defendant is then required to file a statement in reply. Statements must be signed and dated to certify that the statement is true and correct and should only be about relevant issues for seeking or defending the application. As a statement can be tendered as a witness s evidence in an AVO hearing it is important to seek legal advice before providing a statement. Although there are some protections to guard against defendants making admissions of guilt in a statement, it is advisable for defendants to seek legal advice if there is doubt. Exchanging statements can help clarify the issues in dispute, weed out frivolous and vexatious applications, and avoid a trial by ambush. A statement should include all relevant information. It may be tendered at an AVO hearing as a witness s entire evidence. If a party wants to add any more information before the hearing it will need to ask for the court s permission. Amendments can be made in statement form or, with permission of the court, by giving oral evidence at court. While the witness statements should refer to all relevant supporting evidence such as photos, it is not necessary (or practical) to annex all potential supporting items to the statement. However including relevant photos or Facebook screen shots or lists of harassing text messages can be useful for applicants and may save them from having to amend the application before the court date. Witness statements may help convince a defendant to consent to an AVO before a hearing. However, even if there is a statement, a witness may need to be cross-examined (asked questions by the other party to challenge their version of events) on the information contained in it. At a mention following an exchange of statements the magistrate or registrar will check to see if the Directions Order has been complied with. If the orders are not complied with, the Practice Note provides that the application for an AVO may be struck out. However, the magistrate may adjourn for another mention if satisfied there is a good reason for non-compliance. Non-compliance with an order for exchange of statements could result in a costs order. If the parties have complied with the exchange of statements then the matter may be listed for a hearing date. In some courts this may mean waiting up to three months. An interim AVO may be made or extended (continued) until the hearing date. Subpoenas One way of obtaining documents that belong to other individuals or services so they can be used in court proceedings is to issue a subpoena. A subpoena is a court order that requires a person to produce specified documents to the court, or which orders a person to attend court to give evidence oral evidence (tell their version of events to the court). In a police application, the police will issue the subpoenas. In a private application the applicant or their solicitor will prepare subpoenas to be issued by the court. There are costs associated with issuing and serving subpoenas and with a person s reasonable expenses in complying with the subpoena. These costs are the responsibility of the person who issues the subpoena. THE HEARING An AVO hearing is sometimes called a show cause hearing. The protected person must show why, on the balance of probabilities (that is, more likely than not), they fear and have reasonable grounds to fear future domestic violence offences occurring, or future harassment, molestation, intimidation, or stalking. Palladium. The AVO court process 13
If the protected person is under 16 years of age or has an intellectual disability it is not necessary to prove that they are actually afraid of future domestic violence. An AVO can also be made without proof of the protected person s fear if the magistrate is of the opinion that: > > the defendant has committed a previous personal violence offence against the protected person; > > there is a reasonable likelihood that the defendant will commit a personal violence offence against the protected person; and > > the making of an order is necessary in the circumstances to protect the person from further violence. At the hearing, the magistrate will listen to the protected person s evidence of why they have fears. The protected person may then be cross-examined (asked questions by) the defendant s solicitor or by the defendant, if they are representing themselves. The magistrate will also hear the defendant s version of events and then the police prosecutor, or the protected person or their solicitor if it is a private AVO application, can cross-examine the defendant. In making a decision, the magistrate will consider all the evidence. Evidence can include the application for the AVO, statements, verbal accounts of incidents given by witnesses, and documents or things such as phone records, medical reports, emails and text messages or letters. INTERPRETERS If a person s main language is not English, it is important to consider using an interpreter in AVO proceedings. Court proceedings can be stressful and confusing and sometimes it can be useful to use an interpreter even if a person understands and speaks English as a second language in their daily life. Most courts will allow an accredited interpreter to assist if it is required and interpreters in AVO matters are made available by the court free of charge. A female interpreter can be requested although availability cannot be assured. Auslan (Australian Sign Language) interpreters can also be used for people with a hearing or speech impairment. Family members or friends cannot be used as interpreters in court. At the application stage, it may be appropriate to use the Translating and Interpreting Service (Tel: 131 450), which can provide qualified interpreters free of charge. WHAT HAPPENS AFTER AN AVO IS MADE? After a final AVO is made, if the defendant is present in the court the AVO is enforceable immediately. If the defendant is not at court, then the ex parte final AVO is not enforceable until it is served. If there was an interim order in place at the time an ex parte final order was made, it will continue until the final order is served. COSTS When a magistrate makes a decision in a case, the party who was successful can ask the magistrate to make an order that the other party pay their legal costs. This usually includes the costs they have incurred in coming to court for example, solicitor s fees or money paid for filing court documents. Costs are not ordered in a private application for an ADVO unless the court is satisfied that the application was frivolous or vexatious. 31 Frivolous means lacking in substance or with no reasonable prospects of success. Vexatious means to cause annoyance. If an AVO application is made by a police officer, a court will not award costs against a police officer unless satisfied that the police officer made the application knowing it contained matter that was false or misleading. 32 Some different laws apply to costs orders made in relation to some procedural aspects of ADVO applications such as the exchanging of statements by parties before an AVO hearing. It is important for private applicants and defendants to get legal advice on this issue. Costs are determined according to the Criminal Procedure Act 1986 (NSW): > > a court may award costs to a defendant if the AVO is dismissed or withdrawn; > > the amount of costs to be paid is the amount the magistrate considers just and reasonable ; and > > if an AVO is made against a defendant after a contested hearing, the magistrate may order the defendant to pay the applicant s or prosecutor s costs, if such costs are considered just and reasonable. FIREARMS If the defendant has a gun licence or a permit, it is suspended when an interim AVO is made. Once a final order is made, the gun licence is automatically cancelled and an application for another licence cannot be made for 10 years, unless the AVO is revoked (cancelled). 33 Police and military officers claim that these provisions restricting firearms do not apply to them, as they do not hold licences or permits for firearms. This has caused concern for protected persons when police or military officers are defendants in AVO and domestic violence offence proceedings. These concerns have been raised as an issue for law reform by legal services and support services for women experiencing domestic violence. CONSEQUENCES OF BREACHING AN AVO A defendant is not guilty of a criminal offence by having an AVO made against them and the AVO is also not listed on the defendant s criminal record. However, 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 a breach involves physical violence there is a presumption the defendant will go to jail if found guilty. 31. Crimes (Domestic and Personal Violence) Act 2007, section 99(3). 32. Crimes (Domestic and Personal Violence) Act 2007, section 99(4). 33. Firearms Act 1996 (NSW), section 11 and Weapons Prohibition Act 1998 (NSW), sections 17 and 18. 14 HOT TOPICS 87 > Domestic violence
If the defendant breaches the AVO, a report of the breach should be made to police as soon as possible. The police should then investigate the alleged breach. The victim should also make their own notes of the breach, for example, in a diary, together with the name and station of the police officer they reported the breach to, and the police event number for the incident (also called the E number ). Women s Legal Services NSW has a publication called the AVO Breach Diary which can be used for recording breaches of AVOs. If police decide that there is enough evidence to create a reasonable suspicion that the defendant knowingly breached the AVO they have an obligation to charge the defendant. NSW Police have a pro-investigation policy for all domestic violence offences. There is no such thing as a minor or technical breach of AVO. Depending on the circumstances, police can issue the defendant with a court attendance notice or make an arrest. If police charge the defendant with a breach, the defendant will need to attend court and may plead guilty or not guilty. It is unlikely that the maximum sentence will be given unless the breach is very serious, or if there is a history of domestic violence offences. Other penalties may include a fine or a good behaviour bond. If a person pleads guilty or is found guilty of a domestic violence offence, the court is to direct that it be recorded on the person s criminal record as a domestic violence offence. Multiple offences of a similar nature are relevant to issues of bail and sentencing on future offences. 34 WORKING WITH CHILDREN CHECK In NSW there is a requirement that all persons volunteering or employed in child related work be subject to a satisfactory Working With Children Check. This involves a search of national criminal histories from CrimTrac. The check previously required checking for relevant AVOs. However changes in 2012 with the Child Protection (Working with Children) Act 2012 (NSW) mean that an AVO of itself is not a disqualifying offence nor a trigger offence requiring a risk assessment to be undertaken. However, an AVO may form part of a risk assessment if a trigger offence has been identified in the check therefore requiring further risk assessment to be undertaken. CAN A FINAL AVO BE CHANGED? After a final AVO has been made, an applicant, protected person or defendant may apply to vary or revoke (cancel) the AVO. If any of the protected persons on the AVO are under 16, only the police can apply to vary the order. 35 An AVO can be varied to impose greater or lesser restrictions on the defendant, including adding, deleting or amending orders, revoking or extending the duration of the order. A private application for variation can be made in the Local Court through the registrar. It needs to set out the proposed variations and the reasons for them. If there are multiple protected persons, special notification provisions apply. Seized firearms on display for the media at the AFP Exhibit Management Centre at the end of a 6-month illicit firearms campaign, 15 May 2014. Jeffrey Chan, Canberra Times. 34. Crimes (Domestic and Personal Violence) Act 2007, section 12. 35. Crimes (Domestic and Personal Violence) Act 2007, section 72. The AVO court process 15
Police must serve the application for variation or revocation on the other person named in the AVO. No variation can be made until service has taken place. A magistrate will only allow a variation or revocation of the AVO if it is proper in all the circumstances to do so. A magistrate can decline to hear an application to vary or revoke an order if they are satisfied there has been no change in circumstances since the order was made or if the application is in the nature of an appeal against the order. An example of when a protected person may want to vary an AVO is if they want to live with the defendant again but still have the protected of the mandatory orders. APPEALS, ANNULMENTS AND REVIEWS A defendant has a right of appeal to the District Court against having an AVO made against them. 36 The application must be made within 28 days (or within three months with leave (permission) of the District Court). There is a legal presumption that an AVO will continue for the person s protection until an appeal has been decided. If an AVO was made against a defendant in their absence, the defendant can apply to the Local Court to annul the order. The defendant must show the Local Court that their non-attendance was due either to: > > not being aware of the proceedings until after they were completed; or > > being hindered by accident, illness or misadventure or other cause. In the alternative, they can argue it is in the interests of justice to grant the annulment application. The application for annulment must be made within two years of the making of the AVO. If a magistrate dismisses an AVO application, the applicant or the protected person may apply to the District Court for a re-hearing of the matter within 28 days. Any re-hearing in the District Court is based on what was said in the Local Court (the transcript) rather than new evidence being called from witnesses, unless the District Court gives permission to present fresh evidence. HOW AVOs INTERACT WITH FAMILY LAW After separation in a domestic violence relationship, it is common for violence to occur when parents are organising spending time arrangements for a child, or when parents are dropping off or picking up a child from visits. 37 Often, the AVO will contain standard orders 5 or 6 (see page 9) to accommodate the family law parenting orders. Parenting orders include orders about where the child lives ( living with orders ), who they spend time with ( spending time with orders), how parents must communicate between themselves about the child, the communication the child is to have with the parents and the allocation of parental responsibility. This means that even if a relationship between the parents ends, they are likely to continue to remain in contact to discuss issues about their children. Generally, parenting orders override an AVO to the extent of any inconsistency. For example, when an AVO states that the defendant must not approach within 100 metres of the protected person s home, but the family law orders state that he is to collect the child from the home every Friday at 4pm, then the defendant can approach the home on Friday at 4pm and not be in breach of the AVO, as the AVO is invalid to the extent of the inconsistency. However, if the defendant assaulted the protected person while he was at the home, or he went within 100 metres of the home on other days of the week, then the defendant could be charged with breaching the AVO. Under section 68R of the Family Law Act 1975, a Local Court magistrate has the power to vary, suspend or revoke parenting orders on the making of an AVO if there is new material that was not before the family law court that made the parenting orders. In this way, AVOs can override previously existing parenting orders. However, sometimes the Local Court is reluctant to change a parenting order. The under-utilisation of section 68R may be due to a variety of reasons including the complex wording of the legislation and lack of knowledge by police prosecutors, lawyers and magistrates about the section. 38 Even where magistrates, lawyers and police prosecutors are familiar with the provisions of section 68R, there is often not sufficient time on a busy AVO list day to obtain instructions and evidence in support of a successful section 68R application. In such cases, a protected person will need to make a separate application in a family law court to vary the family law orders. It is sometimes suggested in the media, or by some police or lawyers, that women routinely make applications for AVOs to gain an advantage in family law cases about children or property. Some people suggest that a woman will apply for an AVO so that she gets a greater share of the marital property, or so that her ex-partner will be denied spending time with children. If one party in a family law matter claims that domestic violence has occurred, they must still prove it to a family law court. Although an AVO may be presented to a family law court as evidence of family violence, this will be considered among other sources of evidence including for example affidavits or expert reports. For further discussion about domestic or family violence in family law courts see Family law on page 22. 36. Crimes (Domestic and Personal Violence) Act, section 84 and Crimes (Appeal and Review) Act 2001 (NSW), Part 3. 37. Negotiating Child Residence and Contact Arrangements Against a Background of Domestic Violence M Kaye, J Stubbs and J Tolmie, Griffith University Socio-Legal Research Centre: Research Report 1, June 2003, available online at www.griffith.edu.au/centre/slrc/flru/pdf/ wp4.pdf 38. Section 68T Family Law Act 1975: Magistrates power to alter Family Court contact orders when making or varying ADVOs, M Kaye, Judicial Officers Bulletin, Vol 15, No.1, 2003. 16 HOT TOPICS 87 > Domestic violence
AVOs in other states REGISTERING A NSW AVO IN ANOTHER STATE An AVO made in NSW is only enforceable in NSW. However an AVO made in NSW can be registered in all other states and territories of Australia and in New Zealand so that it becomes enforceable. The process may vary, so the protected person should contact the equivalent of the Local Court in that state or territory to ask about registering their NSW AVO. REGISTERING A PROTECTION ORDER MADE IN ANOTHER STATE A protection order made in another Australian state or territory or in New Zealand can be registered in NSW by: > > completing an application form, which is available from the Local Court; > > filing a copy of the external protection order to be registered; and > > filing evidence that the defendant has been given (served) a copy of that order. Once the AVO is registered it has the same effect as an AVO made in NSW. PROTECTION ORDERS IN OTHER STATES AND TERRITORIES Australian Capital Territory Domestic Violence Orders made under the Domestic Violence & Protection Orders Act 2008 (ACT), can protect domestic partners (including people in same-sex relationships), relatives, or children of such persons. Domestic violence is recognised as physical injury, property damage, threats to injure or damage property, harassment or offensive behaviour towards the relevant person or threats or violence directed at pets of the relevant person. Unlike many other jurisdictions, in the ACT police usually do not make the applications on behalf of a person seeking a domestic violence order; the person makes their own application to the Magistrates Court. Northern Territory The Domestic and Family Violence Act 2007 (NT) enables a person seeking protection to apply to the court for a Domestic Violence Order (DVO). Police may also make an application for a DVO on behalf of the protected person. A court issued DVO is usually made for one year, but may be made for a longer period if necessary. A police issued DVO is taken to be a summons to the defendant to appear at court and show cause as to why the order should not be confirmed. There is no specified time limit for the duration of a police issued DVO. DVOs can be tailored to suit the circumstances of the person needing protection and may include an order that the defendant be required to take part in a rehabilitation program or orders for replacement tenancy agreements. A DVO may restrain the defendant from contacting the protected person directly or indirectly, or may allow for contact but restrain the defendant from harassing, threatening, verbally abusing or assaulting the protected person. A non-intoxication DVO may restrict the defendant from having any contact with the protected person when the defendant is intoxicated by alcohol or other substances but allow for contact at other times. The Northern Territory government recently announced the introduction of mandatory reporting of domestic violence incidents in addition to mandatory reporting in relation to child abuse. Under new provisions of the Care and Protection of Children Act 2007 (NT), mandatory reporting now applies to anyone in the Northern Territory who believes a child has suffered, or is likely to suffer harm or exploitation or be a victim of a sexual offence. Further, all adults are required by law to report domestic and family violence if they think someone has or is likely to suffer serious physical harm because of the violence. Natasha Stott-Despoja from the Foundation to Prevent Violence Against Women and their Children and AFP Commissioner Ken Lay addressed the National Press Club in Canberra on 26 November 2013. Andrew Meares, Sydney Morning Herald. AVOs in other states 17
South Australia The Intervention Orders (Prevention of Abuse) Act 2009 (SA) provides for intervention orders to be made for the protection of people from domestic and non-domestic abuse, and the exposure of children to domestic and nondomestic abuse. The Act has a broad definition of abuse which includes physical, sexual, emotional, psychological and economic abuse. Under the Act, an intervention order may be issued for the protection of any person who has reasonable grounds to suspect that the defendant will, without intervention, commit an act of abuse against them. It may also be issued to protect any child who may hear or witness, or otherwise be exposed to the effects of, an act of abuse committed by the defendant against a person. The order can be issued by police on the spot (called an interim intervention order ) or may be issued by the court. Once an intervention order is confirmed by the court, it remains in effect indefinitely unless a party makes an application for it to be varied or revoked. The defendant can only apply for a variation or revocation after 12 months of the order being in place. The terms of the order can be tailored to meet the needs of the person seeking protection. Queensland Domestic violence is defined by the Domestic and Family Violence Act 2012 (Qld) and covers a wide range of behaviours, such as physical, sexual, emotional, psychological and economic abuse, threats or coercion and any other conduct that controls or dominates a person and causes them to fear for their safety or wellbeing or that of another person. A person can apply for a protection order if they are or were in an intimate personal relationship. Intimate personal relationships are those where the parties are/were: > > married; > > engaged; > > de facto (including same sex couples); > > biological parents of a child (including parents recognised under Aboriginal tradition and Torres Strait Islander custom) and any other person exercising/having parental responsibility for the child; > > in a couple relationship (requires more than just dating); or > > where the violent person is the person s relative or carer. Before making an order, the magistrate must be satisfied that: > > a relationship (outlined above) exists; and > > domestic violence had been committed against the person; and > > the Protection Order is necessary or desirable to protect the person from violence. Tasmania The Family Violence Act 2004 (Tas) covers people in family relationships. The term includes a marriage or a significant relationship such as de facto relationships (including samesex relationships). The Act allows protective orders to be issued by senior police officers (Police Family Violence Orders PFVO) or a magistrate in the Magistrates Court (Family Violence Orders FVO). The Act recognises a broad range of behaviours as constituting family violence and also creates distinct offences of economic abuse and emotional abuse or intimidation. A police officer may issue a PFVO against a person if satisfied that the person has committed, or is likely to commit, a family violence offence. A PFVO lasts for a period of no more than 12 months. A PFVO will be revoked if a FVO or interim FVO is issued in respect of the same parties. A police officer of the rank of inspector or above may vary a PFVO where: > > the victim and the alleged offender consent to the variation; and > > the variation will not affect the safety and interests of the victim or any affected child. If the police are unable to vary the PFVO, a court may vary, extend or revoke a PFVO at any time on application. If a magistrate grants a FVO, it will remain in force for such period as the magistrate considers necessary to ensure the safety and interests of the victim or until an application is made to revoke the FVO. The usual length of a FVO is 12 months. An application to vary, extend or revoke a FVO may be made to the court at any time. The magistrate must consider the safety and interests of the victim and children and if there has been a substantial change in the circumstances since the order was made. The Justices Act 1959 provides for restraining orders for protection from violence for people in other types of relationships. Victoria The Family Violence Protection Act 2008 (Vic) provides a framework for family violence intervention orders (FVIO) to be made by the Magistrates Court against family members. Family members include spouses, domestic partners, people in intimate close relationships and relatives. Family violence has a broad definition under the Act and includes economic abuse and behaviour that is in any way controlling or dominating of a family member. Family violence includes behaviour that a child witnesses (hears or sees) or is exposed to. Police or an affected family member may apply to the court for an FVIO. The Act also provides that police may issue a family violence safety notice at the time police attend an incident outside of court business hours. 18 HOT TOPICS 87 > Domestic violence
Magistrates Courts in Victoria have specialised lists that deal with family violence cases. There are a limited number of courts in Victoria that have specialist applicant and respondent support workers. A limited number of courts can also make mandated orders for respondents to attend men s behaviour change program. These orders are however dependent on the number of funded places available in these programs. Western Australia Under the Restraining Orders Act 1997 (WA), a court can make a Violence Restraining Order (VRO) for the protection of a person in a family and domestic relationship. A family and domestic relationship can include persons who are, or were, married, in a de facto relationship, in an intimate personal relationship or other personal relationship with each other, and persons who are related to each other. To make a VRO, the court must be satisfied that either an act of family and domestic violence has been committed against the person seeking to be protected, and that it is likely to occur again; or that the person seeking to be protected reasonably fears that an act of family and domestic violence will be committed against them. The court must also be satisfied that it is appropriate in all the circumstances to make a VRO. An act of family and domestic violence is defined broadly to include assaults, personal injury, kidnapping or deprivation of liberty, damage to property or pets, behaving in a manner which is intimidating, offensive or emotionally abusive, and threats to do any of these acts. Applications for VROs can be made by the person seeking protection or a police officer on behalf of that person. Applications should usually be made in person, however, in unique circumstances they can be made by telephone. Initially, VROs are made on an interim basis to allow a respondent to object if they wish. Once a VRO is made final, it will remain in force for two years unless specified otherwise by the court. Separate to the VRO process, Western Australia also has specialist Family and Domestic Violence courts which deal with persons who have been charged with criminal offences that involve family and domestic violence. These courts offer a therapeutic case management based approach to dealing with offenders who plead guilty to such offences. Melbourne football club with coach, Paul Roos, walk to raise awareness of White Ribbon Day, Australia s campaign to stop violence against women, Melbourne s CBD, 25 November 2013. Wayne Taylor, The Age News. AVOs in other states 19
Victims support In June 2013, a new scheme for victims of acts of violence in NSW took effect under the Victims Rights and Support Act 2013 (VRSA). This scheme replaced the previous victim s compensation scheme. Any applications for compensation filed under the previous scheme will now be decided under the VRSA. A victim of domestic violence may be eligible for a range of different types of support from Victims Services. The package of care could include: information, support and referral; counselling; financial assistance for immediate needs; financial assistance for economic loss and a recognition payment. An act of violence is defined as an act committed by one or more persons apparently in the commission of an offence and which involved violent conduct and which resulted in injury or death. An act of violence specifically includes sexual assault and domestic violence. Applications for support are made directly through Victims Services. The VRSA does not provide for solicitor s costs to be paid by Victims Services. Victims Services will make support co-ordinators available to applicants to provide assistance with the preparation of the claim and evidence. COUNSELLING There is no time limit on making an application for counselling. The application form seeks brief information about the act of violence but does not need evidence such as a report to police. Applicants will be given an initial 10 hours of counselling and up to a further 12 hours if required. FINANCIAL ASSISTANCE FOR IMMEDIATE NEEDS Applications under this category must be made within two years of the incident or within two years of turning 18 for children. An application must have police and/or medical evidence which establishes act of violence and injury as well as evidence of expenses claimed. Expenses could include costs associated with moving to a safer location, changing of locks and emergency medical and dental treatment. Expenses are capped at $5000 in total. FINANCIAL ASSISTANCE FOR ECONOMIC LOSS Applications under this category must be made within two years of the incident or within two years of turning 18 for children (except for victims of child sexual abuse where there is no time limit on making claims for justice related expenses or out of pocket expenses under this category). An application must have a report to police or other government agency and evidence of injury in the form of medical or dental evidence or a counselling/psychological report and details and evidence of the financial losses claimed. Claims for economic loss could include loss of actual earnings (up to $20,000), cost of living expenses (up to $5000), justice related expenses (up to $5000), medical and dental expenses and damage to clothing or personal effects (up to $1500). Claims under this category are capped at $30,000 in total. RECOGNITION PAYMENT Generally applications for a recognition payment must be made within two years of the incident or within two years of turning 18 for children. However, for victims of domestic violence and sexual assault, applications must be made within 10 years of the last act of violence. A Hampton, DW Stock Picture Library. 20 HOT TOPICS 87 > Domestic violence
There is no time limit for victims of child sexual abuse to make an application. An application must have a report to police or other government agency and evidence of injury in the form of medical or dental evidence or a counselling / psychological report. There are four categories of recognition payments: Category A A $15,000 payment to a family member who was financially dependent upon a homicide victim and $7500 to each parent, step-parent or guardian of a homicide victim. Category B A $10,000 payment to a victim of: (a) a sexual assault resulting in serious bodily injury or which involved an offensive weapon or was carried out by two or more persons; or (b) a sexual assault, indecent assault or attempted sexual assault which was one of a series of related acts. Category C A $5000 payment to a victim of: (a) a sexual assault other than one which falls within those in Category B; or (b) an attempted sexual assault resulting in serious bodily injury; or (c) an assault resulting in grievous bodily harm; or (d) physical assault of a child that is one of a series of related acts. Category D A $1500 payment to a victim of: (a) an indecent assault; or (b) an attempted sexual assault involving violence other than in Category B and C; or (c) a robbery involving violence; or an assault (not involving grievous bodily harm). PERSONAL INJURY CLAIM A victim of domestic violence may have a claim against the defendant for personal injury caused as a result of the assault. A personal injury claim must usually be made within three years of the date of the injury. This type of claim can involve long and costly legal proceedings, and there is a risk of a costs order being made against the person making the claim if the claim is unsuccessful. Advice from a lawyer who is experienced in this area of law should be obtained before commencing a personal injury claim. See Hot Topics 78: You & Your Lawyer for more information. Warrengoldswain, Kalium. Victim support 21
Family law The Family Law Act 1975 is a federal law and covers issues such as divorce, property, arrangements for children after separation and spousal and child maintenance. The laws around property and parenting apply to married, de facto and same-sex relationships. If someone has experienced domestic violence, this will generally be relevant to their family law matter and they should get legal advice from a lawyer who specialises in family law and has an understanding of the dynamics of domestic violence. FAMILY VIOLENCE AMENDMENTS Amendments to the Family Law Act 1975 in 2012 aimed to improve the framework of decision-making to give priority to a child s safety when determining what is in the best interests of the child and to make it easier for allegations of family violence and sexual abuse to be brought before family law courts. The key changes to the Family Law Act: > > broadened the definition of family violence and abuse ; > > directed courts to give greater weight to a child s safety as a primary consideration in determining what is in the child s best interests; > > removed the friendly parent provision as an additional consideration; > > strengthened advisers obligations by requiring family consultants, family counsellors, family dispute resolution practitioners and legal practitioners to prioritise the safety of children; > > introduced a requirement on parties to notify the court of allegations of family violence or abuse of a child as well as require parties to disclose any involvement of child welfare agencies; > > directed courts to inquire about past or future risk or previous experience of abuse or family violence; > > provided immunity to state and territory child protection authorities to make it easier to participate in family law proceedings where appropriate; and > > gave effect to the Convention on the Rights of the Child as an object of Part VII. The Family Law Act requires the court to ensure that any orders made: > > have regard to any family violence order; and > > do not expose a person to an unacceptable risk of family violence. The Family Law Act provides a non-exhaustive list of examples of behaviour that may constitute family violence: > > an assault; > > a sexual assault or other sexually abusive behaviour; > > stalking; > > repeated derogatory taunts; > > intentionally damaging or destroying property; > > intentionally causing death or injury to an animal; > > unreasonably denying the family member the financial autonomy that he or she would otherwise have had; > > unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; > > preventing the family member from making or keeping connections with his or her family, friends or culture; and > > unlawfully depriving the family member, or any member of the family member s family, or his or her liberty. The Family Law Act also lists examples of situations that may constitute a child being exposed to family violence. They include but are not limited to the child: > > over-hearing threats of death or personal injury by a member of the child s family towards another member of the child s family; or > > seeing or hearing an assault of a member of the child s family by another member of the child s family; or > > comforting or providing assistance to a member of the child s family who has been assaulted by another member of the child s family; or > > cleaning up a site after a member of the child s family has intentionally damaged property of another member of the child s family; or > > being present when police or ambulance officers attend an incident involving the assault of a member of the child s family by another member of the child s family. DV AND MEDIATION Mediation in family law matters is generally called Family Dispute Resolution or FDR. In most circumstances, parties must participate in FDR before they can apply to family law courts for orders. However, there are exceptions to this requirement including if there are reasonable grounds to believe there has been or is a risk of abuse or family violence. This is because FDR works best when there is equal bargaining power between the two parties. Where one party has significant power over the other, it is usually difficult to achieve a fair resolution. 22 HOT TOPICS 87 > Domestic violence
FDR is not normally recommended when there is domestic violence. However, sometimes it can be part of a healing and empowering process and can be undertaken with good support. Sometimes special measures can assist with safety concerns such as undertaking shuttle FDR, where parties are in separate rooms and/or FDR with a lawyer present which can be arranged through Legal Aid or some Family Relationship Centres. INJUNCTIONS FOR PERSONAL PROTECTION The Family Court and the Federal Circuit Court have the power to order a court injunction (an order prohibiting certain actions) between parties for personal protection. These orders are often called protection orders. However, applying for an apprehended domestic violence order (ADVO) is cheaper and quicker than applying for a court injunction. Also, ADVOs are specifically aimed at protecting people from domestic violence, and contain orders and enforcement mechanisms that are more suitable for such protection. For these reasons, unless the parties are already involved in proceedings under the Family Law Act they are more likely to apply for an ADVO for their protection than a court injunction. DOMESTIC VIOLENCE AND THE HOME The Family Court and the Federal Circuit Court have the power to make an order which restrains one party from entering or living in the home until such time as the property settlement is finalised. These orders are sometimes called exclusive or sole occupation orders. Before making an order, the court considers things such as the needs of both parties, the needs of the children, the conduct of the parties and any allegations or history of violence. An exclusion order in an AVO can also be used to remove a person from the home, regardless of whether their name is on the title or not. A person who is on the title to a property can also change the locks without anyone s permission. Domestic violence may be relevant to property matters in family law. It is important to get legal advice about any property issues and be aware that time limits apply. Fenech, DW Stock Picture Library. Family law 23
Other legal issues Experiencing domestic violence can impact on every aspect of life and it is common to have many legal issues as a result. DOMESTIC VIOLENCE AND RENTING If a person is renting and experiencing domestic violence there are a number of options available to make them safer in their home. It is important that they seek advice from a lawyer or from their local Tenants Advice and Advocacy Service as the options will depend on the type of tenant they are and the type of Residential Tenancy Agreement they have. Removing a perpetrator of violence In some circumstances, a victim of domestic violence may want the perpetrator removed from the home. The victim of violence can make an application for an Apprehended Domestic Violence Order (ADVO) and ask for an exclusion order preventing the perpetrator from entering the property. They could also apply for an order from the NSW Civil and Administrative Tribunal (NCAT) to end the tenancy of the perpetrator. If a tenant has a final ADVO with an exclusion order, then the tenancy of a perpetrator who is named on the Residential Tenancy Agreement will terminate automatically. Changing the locks Changing the locks at the property can significantly increase the safety of the victim if they want to stay in their home. Usually a landlord s permission is needed before locks can be changed, however, there are special provisions that allow a victim of domestic violence to change the locks without a landlord s consent in certain circumstances. For example, a tenant can change the locks without consent in an emergency or if they have an ADVO with an exclusion order against another tenant or former occupant. Crackphotos. 24 HOT TOPICS 87 > Domestic violence
Ending an agreement early Sometimes a victim of domestic violence may need to leave the premises and end their Residential Tenancy Agreement early. If the Residential Tenancy Agreement is a periodic agreement then a tenant or co-tenant can give 21 days written notice to their landlord and any other co-tenants. If they are in a fixed term agreement and need to leave early then this can be more complicated. Simply abandoning the property may not end a tenant s liability and a victim of violence can be left owing a substantial debt to the landlord. If a tenant has a final ADVO with an exclusion order against another tenant or occupant then they can end their Residential Tenancy Agreement by giving their landlord and any other co-tenants 14 days written notice. Otherwise, they can make an application to NCAT to end their Agreement and liability given the special circumstances of the case. Tenant databases It is common for victims of domestic violence to be listed on tenant databases due to debts they have incurred as a result of abandoning the property or due to damage caused to the property by the perpetrator. A black listing on a tenant database can make it almost impossible to find alternative housing. If a victim of domestic violence has been listed on a tenant database they can make an application to NCAT to have their name removed if the listing was unjust in the circumstances. DOMESTIC VIOLENCE AND EMPLOYMENT Domestic violence and employment do not operate in mutually exclusive domains. Approximately two thirds of women affected by violence in Australia are in paid employment. A 2011 survey of Australian workers found that 30% of the respondents had experienced domestic violence and 19% of respondents to the 2011 National Domestic Violence and Workplace Safety Survey who had experienced violence, said that the violence continued in the workplace in the form of abusive phone calls, texts and emails and the perpetrator coming to the workplace. In July 2013, amendments were introduced into section 65 of the Fair Work Act 2009 (FWA) which provide for victims of domestic violence and those caring for an immediate family member or member of their household who is a victim of domestic violence with a right to request flexible working arrangements. Flexible working arrangements may include changing hours of work (eg working less hours or changing start or finish times), changing patterns of work (eg working split shifts or job sharing) and/or changing the place of work (eg working from another office or working from home). The FWA does not give a right to flexible working arrangements but rather a right to request. An employer is not obliged to agree to the request and can refuse on reasonable business grounds and unfortunately there is no right of appeal against an employer s refusal to grant the request. However, the FWA does protect an employee against an employer taking adverse action against them for requesting flexible working arrangements. Adverse action is where an employer threatens to, organises or takes action by: > > dismissing the employee; > > injuring the employee in his or her employment; > > altering the position of the employee to the employee s prejudice; or > > discriminating between the employee and other employees of the employer. While there are limitations in the flexible working arrangements provisions contained in the FWA, these protections still play an important role in increasing the safety and job security of victims of violence and the people supporting them. Flexible working arrangements are vital for safety planning and provide time and flexibility for people experiencing domestic violence to recover and to attend appointments, go to court and make accommodation arrangements. Job security and an independent income are integral to those trying to leave violent relationships and those who are setting themselves up having left a violence relationship. Leonora Saunders, Cultúra RM. Other legal issues 25
Information and advice CULTURALLY AND LINGUISTICALLY DIVERSE (CALD) TIS National (Translating and Interpreting Service) www.tisnational.gov.au If you do not speak English or it is not your main language, you can call TIS National (Translating and Interpreting Service) for an interpreter. It is free to call most government services and many non-profit services. Tel: 131 450 DEAF/HEARING OR SPEECH IMPAIRMENT National Relay Service If you are deaf or have a hearing or speech impairment, you can ring any telephone number using the National Relay Service. TTY/Voice calls: 133 677 Speak & Listen: 1300 555 727 SMS Relay: 0423 677 767 Internet Relay: www.relayservice.gov.au (some services may not use) Video Relay: choose the available NRS video relay contact on Skype (some services may not use). National Relay Service Helpdesk Hours: Monday Friday (8am 6pm Sydney time) Voice: 1800 555 660 TTY: 1800 555 630 SMS: 0416 001 350 Fax: 1800 555 690 Email: helpdesk@relayservice.com.au Address: Level 2, 10 Mallet St, Camperdown, NSW 2050 ASSISTANCE, REFERRALS, INFORMATION AND LEGAL ADVICE Community Legal Centres NSW www.clcnsw.org.au CLCs NSW is the peak body for community legal centres in NSW. To find the Community Legal Centre closest to you, go to the CLCs NSW website. Tel: 1300 888 529 (LawAccess) Domestic Violence Line The Domestic Violence Line is a telephone service that offers referral to refuges and accommodation, counselling and support services to victims of domestic violence. Hours: 24 hours, 7 days a week. Tel: 1800 656 463 TTY: 1800 671 442 Domestic Violence NSW (formerly Women s Refuge Movement) www.dvnsw.org.au Tel: 02 9698 9777 Fax: 02 9698 9771 Email: admin@dvnsw.org.au NSW Family and Community Services www.domesticviolence.nsw.gov.au Website includes a range of information, including factsheets in community languages and access to the Aurora mobile phone app for those who are experiencing DV or their family and friends. Family Relationship Advice Line The Family Relationship Advice Line is a national telephone service that provides information on family relationship issues, advice on parenting arrangements and referrals to local services. Hours: Monday Friday, 8am 8pm, Saturday, 10am 4pm Tel: 1800 050 321 Family Relationships Online www.familyrelationships.gov.au The Family Relationships Online website provides families with information about relationship issues and services to assist them with their relationship issues, including family dispute resolution services. The website also includes the contact details of Family Relationship Centres across Australia. Family Law Courts www.familylawcourts.gov.au The Family Law Courts National Enquiry Centre has general information about family law court procedures and can make referrals. The Family Law Courts website has information on many topics, court forms, do-it-yourself kits and information about court fees. Hours: Monday Friday, 8:30am 5pm (you can call the National Enquiry Centre 24 hours if you have an urgent family law situation, such as children at risk of being taken overseas without consent). Tel: 1300 352 000 Email: enquiries@familylawcourts.gov.au 26 HOT TOPICS 87 > Domestic violence
Family Violence Prevention Legal Services (NSW) Family Violence Prevention Legal Services are communitybased organisations that provide legal assistance and support to Aboriginal and Torres Strait Islander victims of family violence. Bourke/Brewarrina (Thiyama-li Family Violence Service) Tel: 02 6872 2440 Broken Hill (Warra Warra Legal Service) Tel: 08 8087 6766 or 1800 812 800 Forbes (Binaal Billa Family Violence Prevention Legal Service) Tel: 02 6850 1234 or 1800 700 218 Kempsey (Many Rivers Family Violence Prevention Legal Service) Tel: 02 6562 5856 Moree (Thiyama-li Family Violence Service) Tel: 02 6751 1400 Walgett (Thiyama-li Family Violence Service) Tel: 02 6828 3143 Find Legal Answers www.legalanswers.sl.nsw.gov.au The Find Legal Answers website provides plain language resources selected by specialist law librarians. The Find Legal Answers Tool Kit is available in all NSW public libraries and contains practical plain language resources which are available for loan. Further resources are available in some NSW public libraries. The State Library of New South Wales has a comprehensive collection of legal information resources (including legislation and case law) which is available for use by the public. Address: Macquarie Street, Sydney, (opposite Hunter St) Homeless Persons Information Centre The Homeless Persons Information Centre provides an information and referral service, including for refuge accommodation. Tel: 1800 234 566 or 02 9265 9087 Website: www.cityofsydney.nsw.gov.au LawAccess NSW www.lawaccess.nsw.gov.au LawAccess provides free legal information, advice and referrals. It is a main referral point to find your nearest Legal Aid, Women s Domestic Violence Court Advocacy Service, Community Legal Centre, Family Violence Prevention Legal Service or Aboriginal Legal Service as well as private solicitor referrals. Hours: Monday Friday, 9am 5pm Tel: 1300 888 529 Legal Aid NSW www.legalaid.nsw.gov.au Legal Aid NSW provides free legal advice and information, as well as legal representation for eligible clients. Tel: 02 9219 5000 (Head Office); 1300 888 529 (LawAccess) TTY: 02 9219 5126 Local Courts NSW www.localcourt.lawlink.nsw.gov.au To find the Local Court closest to you, go to the Local Courts website. NSW Office of the Legal Services Commissioner (OLSC) www.olsc.nsw.gov.au You can contact the OLSC to make a complaint against a legal practitioner or service. Tel: 02 9377 1800 or 1800 242 958 TTY: 02 9377 1855 Email: olsc@agd.nsw.gov.au National Sexual Assault, Domestic Family Violence Counselling Service www.1800respect.org.au Tel: 1800 Respect (1800 737 732) Staying Home Leaving Violence (SHLV) The Staying Home Leaving Violence program helps women and children escaping domestic violence to remain safely in their homes. Bega 02 6492 6239 Blacktown/Mt Druitt 02 9677 1962 Campbelltown 1800 077 760 Dubbo 02 6883 1560 Eastern Sydney 02 9526 4701 or 0439 414 673 Fairfield 02 9601 7777 Kempsey 02 6563 1588 Lake Macquarie 02 4943 9255 Liverpool 02 9601 7777 Maitland 02 4934 2585 Moree 02 6752 4536 Newcastle 02 4926 3577 Penrith 02 4721 2499 Redfern 02 9699 9036 Shoalhaven 02 4421 7400 Walgett 02 6828 1611 Wollongong 02 4255 5333 Wyong 02 4350 1748 or 02 4350 1730 White Ribbon www.whiteribbon.org.au Australia s campaign to stop violence against women. Wirringa Baiya Aboriginal Women s Legal Centre www.wirringabaiya.org.au Wirringa Baiya is a statewide community legal centre for Indigenous women. Tel: 02 9569 3847 or 1800 686 587 Information and advice 27
Women s Domestic Violence Court Advocacy Services (WDVCAS) WDVCAS provides information, support and referrals to women who have experienced domestic violence. To find a WDVCAS closest to you, or to find if there is one at the court you are going to you can contact the local police Domestic Violence Liaison Officer (DVLO) or call LawAccess. Tel: 1300 888 529 (Law Access) Women s Health NSW www.whnsw.asn.au Women s Health NSW is the peak body for Women s Health Centres in NSW. To find the Women s Health Centre closest to you, go to the Women s Health NSW website. Email: info@whnsw.asn.au Women s Legal Services NSW www.womenslegalnsw.asn.au Women s Legal Services NSW (WLS) is a statewide community legal centre for women. WLS provides free legal advice, information and referrals through advice lines and outreaches. Limited casework and representation may be available. WLS also does community legal education and law and policy reform work. WLS has expertise in areas of law which affect women including domestic violence, sexual assault, family law, discrimination and employment, victims support, child protection, and human rights and access to justice. Tel: 02 8745 6900 (Administration) Women s Legal Contact Line Free legal advice for women in NSW Tel: 02 8745 6988 or 1800 801 501 Indigenous Women s Legal Contact Line Free legal advice for Aboriginal and Torres Strait Islander women in NSW Tel: 02 8745 6977 or 1800 639 784 Domestic Violence Legal Advice Line Free legal advice for women in NSW with legal issues relating to domestic violence Tel: 02 8745 6999 or 1800 810 784 Outreach Services WLS provides face-to-face legal advice by appointment at a number of locations across Sydney. Telephone to book an appointment at an outreach service nearest to you. Blacktown 02 9831 2070 Fairfield 02 9726 4044 Liverpool 02 9601 3555 Penrith 02 4721 8749 LGBTIQ SERVICES Inner City Legal Centre www.iclc.org.au ICLC is a community legal centre which provides Lesbian, Gay, Transgender and Intersex people with legal services including court assistance for people escaping domestic and family violence and a statewide legal advice service. Tel: 02 9332 1966 or 1800 244 481 Email: iclc@iclc.org.au Another Closet Domestic and Family Violence in LGBTIQ Relationships www.anothercloset.com.au ACON s Anti-Violence Project www.acon.org.au/anti-violence The project supports GLBTI people who have experienced homophobic, transphobic, domestic or family violence. By working with other community services and government agencies the project aims to improve the outcomes for victims and to address the underlying causes of violence. The project includes campaigns and programs promoting community safety and education about domestic and family violence for the LGBTI community. Tel: 1800 063 060 PUBLICATIONS The law handbook*, Thomson Reuters, 12th ed. 2012; see Chapter 21 Domestic violence; (13th edition due late 2014). Women and family law*, Womens Legal Services NSW, 10th ed, 2014. Just a piece of paper: making your AVO work for you*, Maree Livermore and Southern Women s Group, 2nd ed. (3rd edition due 2014). * These are Find Legal Answers Tool Kit titles available online and in NSW public libraries: www.legalanswers.sl.nsw.gov.au Walking a tightrope alcohol and other drug use and violence: a guide for families, [pamphlet] Family Drug Support and NCETA; available online at nceta.flinders.edu.au/nceta/resource-kits 28 HOT TOPICS 87 > Domestic violence
ABN 19 665 924 697 Order form Issue 87: Domestic violence will be the last print edition of Hot Topics. Recent issues are available free of charge online at: www.legalanswers.sl.nsw.gov.au/hot_topics and print copies are still available for purchase. Single issue (please specify) $22.00 All available issues $330.00 All prices include GST Total $ Please specify Topic title/s below: Organisation: Name or department: Address: Tel: Email: PAYMENT OPTIONS Fax: Please debit my: Amex VISA MasterCard BankCard Card no: Expiry date: Name on card: Signature: Enclosed is my cheque/money order made out to the Library Council of NSW Send to: Legal Information Access Centre State Library of NSW, Macquarie Street Sydney NSW 2000 Australia CURRENT ISSUES 87 Domestic violence Domestic violence is one of the most widespread human rights abuses in Australia and globally. Each week in Australia a woman loses her life to domestic homicide. This issue looks at the prevalence of domestic violence and the legal framework that deals with offenders and victims, which includes AVOs, the court process and other legal issues that relate to DV. Services that assist victims of DV and other resources are listed. 86 First Australians An overview of human rights law from its origins and sources, through to the development of modern human rights law. Discusses the domestic operation of human rights law and examines rights-based approaches.. 85 Human rights An overview of human rights law from its origins and sources, through to the development of modern human rights law. Discusses the domestic operation of human rights law and examines rights-based approaches, with case studies on housing and health in Australia.. 84 Voting and elections Over a 3-4 year cycle, Australians vote for representatives in legislative bodies at national, state and local levels each election will be based on different laws. This issue explains the key features of our electoral laws, main differences between laws, who can vote, who can be an election candidate and how votes are counted.. 83 Consumer law This issue looks at the new national consumer legislation, the Australian Consumer law (ACL), which provides new laws relating to product safety, unfair contract terms, national consumer guarantees, doorto-door sales, lay-by agreements and information standards for services as well as products. The issue looks at the complexity of creating this national legislation and what the changes mean. 82 Families This issue looks at the different concepts attached to the idea of family. Some families are vulnerable and require more support, while some undergo changes such as separation, divorce and repartnering. it looks at money and property after separation, child support, adoption and courts dealing with family issues. OTHER ISSUES 81 Child care and protection; 80 International humanitarian law; 79 Australian legal system; 78 You and your lawyer, 77 Refugees, 75 Discrimination, 74 Animal law, 73 Young people and crime, 72 Consumer credit, 71 Courts, 70 Cyberlaw, 69 International law, 68 Indigenous peoples, 67 Prisoners, 64 Health and the law, 63 Climate change, 58 Terrorism, 57 Shelter, 56 Sexual assault, 55 Sentencing, 54 Bill of rights, 52 Copyright, 51 Personal injury. All other issues have now been withdrawn. ENQUIRIES Editor, Hot Topics, LIAC Sydney Tel: 61 2 9273 1645 Fax: 61 2 9273 1250 Email: liac.library@sl.nsw.gov.au www.legalanswers.sl.nsw.gov.au
2013 Domestic violence 87 www.legalanswers.sl.nsw.gov.au The State Library of NSW is a statutory authority of, and principally funded by, the NSW State Government Hot Topics is published by the Legal Information Access Centre (LIAC) The Legal Information Access Centre (LIAC) is a free library-based information service for all members of the community in NSW. The service is based in the State Library of New South Wales. LIAC manages the Find Legal Answers service available through the statewide public library network (nearly 400 locations) and online. www.legalanswers.sl.nsw.gov.au