The National Domestic Violence Orders Scheme began on 25 November 2017. All domestic violence orders (DVOs) issued from 25 November 2017 are automatically nationally recognised and enforceable in every state and territory in Australia.
In the context of domestic violence orders, certain definitions are very important. These terms are defined in legislation and are defined in somewhat wider terms than one would normally expect.
What is Domestic Violence?
Domestic violence is when one person behaves in a way that controls or dominates another person and causes fear for their safety and wellbeing.
Domestic violence is usually a pattern of abusive and controlling behaviour taking many forms. It happens in intimate, family or informal care relationships.
Regardless of age, culture, sexuality or gender identity, you have the right to live without fear.
Domestic violence includes a wide range of behaviours that control or dominate someone or cause them to fear for their personal safety or wellbeing. These behaviours may include:
physical or sexual abuse—punching, hitting, choking, or threatening to punch or hit, forcing a person to participate in sexual acts, damaging someone’s property or threatening to damage property, including hurting or threatening to hurt pets
emotional or psychological abuse—stalking, repeated text messaging, making insulting comments, calling someone names, blackmailing or extorting, preventing contact with family and/or friends, controlling someone’s appearance, putting them down, threatening to expose their sexual orientation
economic abuse—denying, withholding, controlling or misusing money or property, or threatening to do s
threatening behaviour—saying things or acting in a way to make someone feel afraid, threatening to commit suicide or self-harm, stalking
coercive behaviour—forcing, intimidating or manipulating a person to do things they don’t want to do, such as sign a contract (e.g. for a loan) or a legal document giving another person power over their affairs (e.g. power of attorney).
Domestic violence extends to children seeing violence, like their parent being hurt, being called names, things being broken or police arriving.
Who is a Spouse?
A 'spouse' is defined to mean:
either one of a male or female who are or have been married to each other;
either one of the biological parents of a child, whether or not they are or have been married or are residing or have resided together; or
either one of two persons, whether they are the same or the opposite sex, who are residing or who have resided together as a couple.
What is an Associate?
An 'associate' is a person whom the aggrieved spouse regards as an associate or who regards himself or herself as an associate of the aggrieved spouse. However, it must be reasonable to regard that person as an associate. Examples of associates are :
a person who works at the same place as the aggrieved spouse;
a person who resides at the same place as the aggrieved spouse; or
a person who belongs to the same church, club, or other type of association as the aggrieved spouse. What is a Relative?
A 'relative' is a person whom the aggrieved spouse regards as a relative or who regards himself or herself as a relative of the aggrieved spouse. However, it must be reasonable to regard that person as a relative. It must also be borne in mind that some people, such as Indigenous people, or people with particular religious beliefs, have wider concepts as to who is a relative.
WHEN CAN A COURT MAKE A DOMESTIC VIOLENCE ORDER?
What is an Apprehended Violence Order?
An Apprehended Violence Order (AVO) is an order made by a court against a person who makes you fear for your safety, to protect you from further violence, intimidation or harassment. All AVO’s say that the person you fear, called the defendant must not assault, harass, threaten, stalk, or intimidate you. Other conditions can be added by the court, on a case by case basis.
The defendant must follow the AVO. You can contact the police to help you apply for an AVO. You can also apply for an AVO through your local court. There are two types of AVOs:
1. Apprehended Domestic Violence Order (ADVO)
An ADVO is made where the people involved are related, living together or in an intimate relationship, or have previously been in this situation. In the case of Aboriginal or Torres Strait Islander people, ADVOs can also be made where the people involved are part of the kin or extended family of the other person. ADVOs are also available to people who are or have been in a dependent care arrangement with another person, including an arrangement with a paid or unpaid carer. The ADVO is only available for the person being cared for not the carer. People living in the same residential facility can also have an ADVO.
ADVOs are now automatically recognised in all Australian states and territories.
2. Apprehended Personal Violence Order (APVO)
An APVO is made where the people involved are not related and do not have a domestic relationship, for example, they are neighbours or work together.
REPRESENTATION IN COURT:
If the NSW Police apply for the APVO or ADVO on your behalf, then you will not need to seek legal assistance by way of a lawyer. If you are applying for an APVO or ADVO independently, it is advised to seek legal assistance. You can represent yourself, however, a legal professional would be advantageous. If you cannot afford legal representation, you can apply for Legal Aid.
You or the police can ask the Court to make a temporary AVO to protect you until the next court date. The magistrate may need to hear some evidence from you to make an Interim AVO.
If the defendant has been served with the AVO application but does not come to court without a good reason the Court can make an AVO in their absence. Sometimes the police are not able to serve the defendant with the application by the time you first go to court. If this happens, your case will be postponed to give the police more time to serve the defendant with the application.
The Court can make an AVO if:
The defendant consents (agrees) to an AVO being made; or
After hearing evidence, the Court is satisfied that there are fears for your safety and those fears are reasonable; or
The defendant has been served with the AVO but does not show up at court.
If the defendant does not consent to the AVO, your case will be adjourned (postponed) for a hearing. The Court may decide to make a temporary AVO to protect you until the hearing. This is called an Interim AVO. A hearing is when the magistrate listens to the evidence and decides if an AVO should be made.
If your matter is adjourned for hearing, you may be told by the magistrate to give written statements to the Court by a certain date. Your matter will usually be listed for another court date to see if both you and the defendant have done the statements. If the police applied for the AVO for you, they will be preparing the statements.
When both you and the defendant have given the Court your written statements the matter should be listed for a hearing. It is important that you attend court for the hearing. If you do not attend, the AVO application may be dismissed. If the defendant does not attend court, the AVO may be made without them.
These conditions prohibit (stop) the defendant from:
Assaulting or threatening the Protected Person;
Stalking, harassing or intimidating the Protected Person;
Intentionally or recklessly destroying or damaging any property that belongs to or is with the Protected Person. Anyone in a domestic relationship with the Protected Person is also protected by these conditions. This may include their children.
Extra conditions may be included in the AVO stopping the defendant from:
Approaching or contacting the Protected Person
Going near where the Protected Person may live, work or go
Approaching the Protected Person, or being in their company, after drinking alcohol or taking illegal drugs
Trying to find the Protected Person
Any other conditions the Court thinks are necessary for the safety and protection of the Protected Person
When an AVO is made, the defendant does not get a criminal conviction or a criminal record. The details of the AVO are kept on a police database.
If the defendant does something that the AVO says they must not do, they may be charged with a criminal offence. This is called a breach of the AVO.
You should always keep a copy of your AVO with you. If you have children, think about also giving a copy of the AVO to their school. You should make a report to police if the defendant breaches any of the conditions listed on the AVO. The standard length for an ADVO is 2 years. The Court can make an AVO for an unlimited time in some situations.
If there is a change of circumstances, you or sometimes the police on your behalf, can apply to the Local Court to have the AVO changed or cancelled. This is called a variation. If the Protected Person, or one of the Protected Persons on the AVO is a child, the parent must get permission from the Court to apply to vary the AVO.