February 5, 2015
Sadly, we had an influx of AVO cases over the lead up to, and the few weeks following, the Christmas period. At the same time, we noticed the increase in recent media attention to this area, with calls for crackdowns, claims that half of all AVOs fail and most are breached, and suggestions that domestic violence is approaching epidemic levels.
Over the years, we’ve dealt with many of these matters. These have ranged from the more genuine and severe to the more questionable. In one case, the Applicant woman was severely bashed by another woman in a public place for sleeping with the attacker’s husband. In another, the Defendant had threatened to destroy a man’s car after catching him in bed with his girlfriend. Other cases have ranged from stalkers themselves having sought AVOs against their ex-lovers’ new partners; ex-partners (male and female) fabricating assaults and domestic violence to assist with child custody and maintenance cases, and employees of neighbouring businesses waging war in the communal elevator. Then there are the genuine cases of domestic violence, gang violence and so on…
The list goes on, but the point is that we’ve seen a great number of things in practice; some of which are worth sharing here to increase the effectiveness of genuine AVOs (or applications), to successfully defend the more questionable, and to minimise the incidence of breaches of both types. Here are our top 10 pointers:
1. You don’t need the Police to make an AVO application on your behalf – this can be done privately, by you or your lawyer. Without intending any disrespect or criticism of the Police, more often than not, in genuine case, the prospects of success will be higher for a private application. This is because, generally, Police Prosecutors can be overworked and under-resourced, and often only have a chance to read the file the morning of the hearing, along with the other 50 or so matters they are running in that morning’s list. In addition, lawyers are much better equipped to adduce evidence and deal with the harsh cross-examination of the alleged victim by the Defendant’s lawyer. However, the initial hurdle is getting the application past the Local Court Registrar or Magistrate in Chambers. Contact us to learn more about this.
2. If you are a Defendant who fails to appear at the hearing or even the first mention, and you had notice of the date, time and place you were supposed to appear, the Court may issue a warrant for your arrest. Once arrested, the Court can require that you be held in a correctional facility or other secured place until you are required to appear in Court again, for example. It is therefore wrong to assume that things will be easier if you don’t turn up, even if you don’t wish to oppose the application or the specific orders sought.
3. In most cases, interim or provisional orders will be put in place right from the beginning, irrespective of whether the application is made by Police or in private. Generally, these orders will be of the same form and effect as the final orders sought. They can be in place without a Defendant’s knowledge, even before a Defendant is served with a Court Attendance Notice or otherwise becomes aware of the proceedings. This can provide considerable scope for even inadvertent breaches, the consequences for which could be the same as even intentional or reckless breaches of final orders (discussed further below).
4. Depending on the specific facts and circumstances of the case, the prosecution brief of evidence may only need to be served “at the first available opportunity”, which in some cases could be right before the final hearing. As such, Defendants need to take active steps from the get-go if they expect to be sufficiently prepared to defend an application. These cases can turn on technical points of law, so a Defendant who has no prior knowledge of the specific evidence adduced and no understanding of the intricacies of this area of law is setting themselves up for failure, especially if representing themselves, and even where the application is questionable (in motive or otherwise).
5. AVOs are not restricted to cases of domestic violence or domestic relationships. In NSW, we have “apprehended personal violence orders” and “apprehended domestic violence orders”. The latter obviously relate to domestic relationships, but the former can relate to circumstances as between any two or more people.
6. Generally, before an AVO can be made, there must have been some serious act of violence constituting a personal violence offence or a domestic violence offence, or actual intimidation or stalking. However, these terms are not used according to their ordinary meaning. They are all specific legal terms, and can be very technical and therefore difficult to establish.
7. Again, generally, it may not be sufficient that an isolated act of violence, intimidation or stalking has taken place. The Court will only make an AVO where it is necessary for the protection of someone. It will therefore be necessary to establish that there is an imminent and continuing threat to safety. Usually this is established by proving a fear of imminent danger on the part of the Applicant. Several factors will prove otherwise, including, in some instances, the Applicant contacting the Defendant following the making of the application, whether in person or otherwise. A Defendant’s lawyer will jump on anything that could even suggest that the Applicant is not fearful, or that the incident in question was a one-off.
8. Even in cases where the Court declines to make an AVO, the evidence adduced at trial, or the facts and circumstances of the case generally, can lead to charges being laid (and other consequences) for other specific offences. For example, if it is established that the Defendant has stalked or intimidated someone with the intention to cause physical or even mental harm, to a person or their partner, the Defendant may ultimately be found guilty of that specific offence and, in the case of that offence, punished by a fine of up to 50 penalty units or and / or imprisonment of up to 5 years. It therefore pays for both parties, as the case may be, to be actively involved and adequately prepared for their part in any AVO proceedings.
9. If a person is found to have knowingly lied or mislead the Court through the making of an AVO application, in addition to exposing themselves to perjury, they will be liable for a specific offence punishable by up to 10 penalty units and / or up to 12 months imprisonment. If a Defendant has a good lawyer, it should be assumed that the truth will come out in cross-examination. So, if you’re thinking this might be a good way to get back at your ex, think again…
10. The consequences for breaching an AVO can be severe, and include significant terms of imprisonment and substantial fines. As the specific form and effect of each AVO (including both interim and final orders) will be different in each case, some AVOs may be very easy to breach. For example, the Defendant may be prohibited from entering their own home in the case of an apprehended domestic violence order, or from entering their own workplace or communal areas of a workplace in the case of an apprehended personal violence orders. In addition, AVOs will usually require a person to keep a certain distance from another person. These conditions can be extremely easy to break, even inadvertently, and even before considering that some Applicants will go out of their way to cause a breach and report it. That being so, even if a Defendant does not wish to oppose an AVO generally, it can be worth defending the application if only to influence the precise terms of the order, and it is always worthwhile for both parties to be well aware of the nature and effect of all terms of an AVO.
11. In some cases, the Court may order that the Prosecution or Applicant pay the Defendant’s legal costs, much like in civil or commercial cases. In general terms, this will only occur where it was or should have been known that the application had no real prospects of success, and therefore that proceeding with the application was unreasonable from some point in time onwards. Alternatively, there may be cases where the conduct of the Prosecution or Applicant, in any part or all of the proceedings, unreasonably resulted in the Defendant incurring unnecessary costs. The Court has a discretion to award costs, meaning it is not automatic, but this can prove a useful bargaining tool for a Defendant in defending questionable applications, and should serve to deter the making of them.
If you are experiencing a problem with an AVO or any circumstances relating to an AVO, feel free to contact us for a chat.