Apprehended violence orders

[25-000] Introduction

Note:

All references to sections in this chapter are, unless otherwise stated, references to sections of the Crimes (Domestic and Personal Violence) Act 2007.

Abbreviations

  • ADVO — apprehended domestic violence order

  • APVO — apprehended personal violence order

  • PN 2/2012 — Local Court Practice Note 2 of 2012

  • PINOP — person in need of protection

  • CJC — Community Justice Centre

The Act envisages that apprehended violence orders (AVOs) can be made:

1. 

where a formal application is made in accordance with the relevant requirements of the Act, or

2. 

as a consequence of a person being charged with a particular offence.

The objects of the Act

In John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512, Spigelman CJ stated at [20] (referring to repealed Pt 15A Crimes Act 1900):

The legislative scheme for apprehended violence orders serves a range of purposes which are quite distinct from the traditional criminal or quasi-criminal jurisdiction of the Local Court. The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking intimidation and harassment. Apprehended Violence Orders constitute the primary means in this State of asserting the fundamental right to freedom from fear. The objects served by such orders are quite distinct from those that are served by civil adversarial proceedings or proceedings in which an arm of the State seeks to enforce the criminal law.

Sections 9 and 10 set out the objects of the Act. The court is to be guided by those objects when exercising jurisdiction.

Note:

The court should ensure an understanding and familiarity with both sections.

In particular, s 9(2) states that, in relation to domestic violence:

This Act aims to achieve those objects by:

(a) 

empowering courts to make apprehended domestic violence orders to protect people from domestic violence, intimidation (including harassment) and stalking, and

(b) 

ensuring that access to courts is as safe, speedy, inexpensive and simple as is consistent with justice.

The objects in s 10(2), which concerns personal violence, are in broadly similar terms but include, in s 10(2)(c), the additional object of ensuring dispute resolution options are encouraged where appropriate.

Local Court Practice Note 2 of 2012

Local Court Practice Note 2 of 2012 commenced on 1 May 2012. It mandates the procedure to be followed in the Local Court in ADVO and APVO applications and sets out case management and hearing procedures.

[25-020] Applications for orders

Persons who may seek orders

An application for an order can only be made by a person for whose protection an order is sought, the guardian of a person in need of protection (where a guardianship order is in force) or a police officer: s 48(2).

However, this is qualified by s 48(3), (4) and (4A).

Only a police officer may apply for an order where each person the subject of the order is a child at the time of the application: s 48(3).

Section 48(4) provides that an application may be made:

  • by more than one person: s 48(4)(a), and

  • if made by police, on behalf of more than one person: s 48(4)(b), and

  • by a private applicant on behalf of a person with whom that applicant has a domestic relationship: s 48(4)(c).

Under s 48(4A) the court may refer an application for an order to police where the applicant is not a police officer, the orders sought extend to the protection of a child and the court considers the referral would be in the child’s best interests.

Types of orders

Generally speaking, the Act provides for the making of two types of orders:

  • Apprehended domestic violence orders: see Pt 4, and

  • Apprehended personal violence orders: see Pt 5.

The Act draws distinctions between ADVOs and APVOs. For example, the test to be applied when making orders is set out separately for ADVOs (s 16) and APVOs (s 19), as are the matters to be considered when determining whether to make an order: ss 17 for ADVOs and 20 for APVOs. Applications are categorised ADVO or APVO upon issue by the registry.

If the court is unable to determine whether to make or treat an existing order as an ADVO or APVO, s 82(1) empowers the court to make whatever type of order it thinks fit. An order is not invalid if when it is made, it is incorrectly categorised as an ADVO or APVO: s 82(3).

The Act enables the making of such orders on an interim (see Pt 6) or provisional basis (see Pt 7): see [25-060] Interim and provisional orders.

Apprehended domestic violence orders

When seeking an ADVO, the PINOP must have, or have had, a domestic relationship with the defendant.

Apprehended personal violence orders

APVOs relate to applications where the parties are not in a domestic relationship as defined under s 5.

[25-040] Service of applications

Section 55 requires that service of an application be in accordance with the Local Court Rules 2009.

Rule 5.6 requires personal service unless exceptions under the rules apply.

The exceptions are:

  • where violence or threats prevent personal service, by leaving the document as near as practicable to that other person: r 5.3(2)

  • service on a legal practitioner: r 5.6A

  • service on an inmate at a correctional centre: r 5.6B

  • substituted service: r 5.11.

Rule 5.7(2A) provides that only a police officer or a person nominated by the court may serve an application for an AVO.

Rule 5.11 allows the court discretion to order service by other means that will ensure the application will be brought to the attention of the defendant. Orders of this kind are made where there is information that a person is avoiding service. Examples of substituted service are leaving the application at the front door and/or in the letter box of the stipulated premises.

A statement of service is required. A statement of service by a police officer no longer has to be signed. An electronic copy is sufficient: r 5.12(5).

It is important to ensure, when requested to make final orders ex parte, that service has taken place in accordance with the Act and the Rules.

[25-060] Interim and provisional orders

Interim orders — s 22

A court may make an interim ADVO or interim APVO if it appears it is “necessary or appropriate” to do so: s 22(1). Part 5, PN 2/2012 sets out the procedure to be adopted in determining an interim order application and the receiving of evidence when determining a contested application.

A court has a positive obligation to make an interim order when a person has been charged with a serious offence: s 40; see also [25-140] Obligations to make interim orders when charges listed — s 40.

If the parties do not consent to an interim order, before making the order the court must still be satisfied in applying the test under s 22 of the matters set out in ss 17 (for interim ADVOs) or 20 (for interim APVOs): Pt 5.3.

Section 22(3) enables the court to make an interim order whether or not the defendant is present or has been given notice of the proceedings.

Section 22(4) and Pt 5.5 of the Local Court Rules set out the circumstances where a court may make an interim order in the absence of the PINOP.

Application for orders where police are not involved may be short listed before the court where the applicant is seeking an urgent ex parte interim order. This occurs prior to any service of the application if the registrar is satisfied there are urgent circumstances.

Provisional orders — ss 25–32

A provisional order is generally made without the defendant having an opportunity to be heard. It remains in force at least until the matter is first listed before the court.

Only a police officer can apply for a provisional order. This may be done by telephone, facsimile or other communication device: s 25(1). A provisional order is taken to be an application for an order made under Pt 10 of the Act: s 29(1).

Provisional orders remain in force until either revoked, or an interim or final order is made, or the application is withdrawn and dismissed: s 32(1). However, if the defendant is not present in court, the provisional order ceases when the defendant is served with a copy of the interim or final order: s 32(2)(b).

A provisional order can only be revoked or varied by an authorised officer, which relevantly includes a magistrate, children’s magistrate or a registrar of the Local Court: ss 3 and 33. Only a police officer may apply to vary or revoke a provisional order: s 33(3). Section 33A(1) permits a defendant to apply to vary a provisional order but only if the order was made by a senior police officer. If the protected person or one of the protected persons is a child only a police officer can make the application: s 33A(2).

A provisional order may not be renewed. If a court purports to renew or continue a provisional order, the order is deemed to be an interim order: s 34(2).

Note:

Personal service by a police officer is required for provisional orders: s 31. A breach of a provisional order carries the same penalty as a breach of an interim or final order.

[25-080] Procedure at first listing of the application

Referral to mediation (APVOs only) — s 21

When considering whether to make an interim or final order, applications in apprehended personal violence proceedings are to be referred to a CJC unless the court is satisfied there is good reason not to do so: ss 21(1), 24A. A large number of disputes dealt with by the CJC are resolved by agreement between the parties. These include disputes between neighbours and some family members, workplace disputes as well as applications that are centred around what otherwise would be a civil claims dispute.

Referral to mediation “at any other time” is at the discretion of the court: s 21(1)(b).

If no interim orders are in force, the application is stayed until a written report is provided by the CJC on the outcome of the mediation or attempted mediation: ss 21(4) and (6). The court in making interim orders should ensure provision for a contact during any CJC session.

The factors the court must consider in determining whether there is good reason not to refer a matter to mediation are set out in s 21(2), namely whether:

(a) 

there has been a history of physical violence to the protected person by the defendant, or

(b) 

the protected person has been subjected to conduct by the defendant amounting to a personal violence offence, or

(c) 

the protected person has been subjected to conduct by the defendant amounting to an offence under section 13, or

(d) 

the defendant has engaged in conduct amounting to harassment relating to the protected person’s race, religion, homosexuality, transgender status, HIV/AIDS infection or disability, or

(e) 

there has been a previous attempt at mediation in relation to the same matter and the attempt was not successful.

The existence of any one or more of those factors does not prevent a court from referring a matter to mediation: s 21(2A).

The CJC may still decline to accept the matter for mediation or terminate the mediation and refer the matter back to the court: s 21(3); see also s 24 Community Justice Centres Act 1983.

Note:

A person is not guilty of an offence against s 14(1) if the contravention was necessary to attend mediation under s 21: see s 14(3)(a).

Case management orders — PN2/2012

Where final orders are opposed, case management orders under Pt 6.3, PN 2/2012 apply. These include standard directions regarding the service of written statements of witnesses by both parties. Under Pt 6.4 there is no requirement for statements by police officers to be served at this stage. A hearing date should not be set until this direction has been complied with.

If considered necessary, have a copy of the statement template provided to the parties. These may be placed on the bar table.

Where parties are unrepresented ensure the court explains the consequences of non-compliance. This can be achieved by handing a copy of the Timetable for Statements provided for in PN 2/2012.

[25-100] Procedure to be adopted at a hearing

Practical issues

Be aware the legislative procedure to be adopted at hearings (with some exceptions) is set out in:

Sections 57–71 of the Act set out the provisions concerning the hearing of application proceedings and address various matters including:

  • court to set time, date and place for hearing: s 57

  • procedure if party not present on hearing date: s 57A

  • whether proceedings to be in absence of the public: s 58

  • change of venue: s 59

  • right of representation and conduct of case: ss 60 and 61

  • evidence to be on oath: s 63

  • recording of evidence: s 64

  • adjournments of the hearing: s 65

  • power to dispense with rules: s 67

  • power to stay proceedings (s 68 arrest of defendant): s 69

  • witnesses and production of evidence: s 70

  • warrants: s 71.

Note:

Applications under the Act are not criminal proceedings. With some limited exceptions, the Criminal Procedure Act does not apply. The exceptions are:

  • Section 70 — subpoenas and attendance of witness, refer to ss 220–232 (in Ch 4, Pt 3) Criminal Procedure Act

  • Section 71 — warrants of arrest or commitment, refer to ss 233–244 (Ch 4, Pt 4) Criminal Procedure Act

  • Section 41 — evidence of child witnesses is to be given in accordance with Ch 6, Pt 6, Divs 3 and 4.

While the onus of proof is a civil test, the application of the Civil Procedure Act 2005 is limited to some degree and dependent on the Local Court Rules and PN 2/2012.

Section 86(2) states:

Without limiting subsection (1), the rules made for the purposes of this Act may adopt, with or without modification, the provisions of any rules made under the Civil Procedure Act 2005.

See Pt 3.2 PN 2/2012 and referral to s 56 Civil Procedure Act 2005.

Part 6 Local Court Practice Note 2 of 2012 — procedures at hearing

Evidence received at a contested hearing for a final order is by written statement. Unless the court grants leave, no further evidence in chief may be adduced: Pt 6.6. Inadmissible or privileged evidence is not made admissible by compliance with PN 2/2012: Pt 6.7.

The court retains a discretion if satisfied it is in the interests of justice, to dispense with compliance of all or part of Pt 6: Pt 6.8.

Part 7.2 sets out the evidence and other material on which a final order should be determined. The court has power to restrict time for the examination of witnesses by the parties: Pt 7.5.

Procedures for evidence from vulnerable persons

Division 4, Pt 6, Ch 6 Criminal Procedure Act 1986 applies to proceedings in relation to the making, variation or revocation of AVOs: s 306ZA. In particular, s 306ZB permits a vulnerable person to give evidence in apprehended violence proceedings by CCTV, unless he or she is the defendant. A “vulnerable person” is a child or cognitively impaired person: s 306M(1) Criminal Procedure Act.

See further [26-040] Procedures at hearing, for discussion of requirements in relation to the giving of evidence by, and questioning of, child witnesses under ss 41 and 41A.

Procedures for evidence in cases where sexual offences are involved

If the defendant is charged with a prescribed sexual offence under the Criminal Procedure Act and the PINOP is the complainant in relation to the offence, Pt 5 of that Act applies to the giving of evidence in the AVO proceedings: s 294B(1A), Criminal Procedure Act 1986.

The PINOP is entitled to choose to give evidence by CCTV or other alternative means that restrict contact with the defendant: s 294B(3). The proceedings may be adjourned to enable such means to be used: s 294B(3). However, the court may, of its own initiative or upon application, order that the PINOP’s evidence not be given by those means if satisfied there are special reasons in the interests of justice for such an order: s 294B(5), (6).

Note:

If the PINOP is a vulnerable person (that is, a child or cognitively impaired person), then Div 4, Pt 6, Ch 6 applies instead: s 294B(2).

Party’s right to a support person when giving evidence — s 46

A party in AVO proceedings has the right to have a supportive person present when giving evidence.

That person may be a parent, guardian, relative, friend or other person chosen by the party as a supportive person. The supportive person may be with the party as an interpreter, or for the purpose of assisting the party with any difficulty or giving evidence associated with a disability, or for the purpose of providing the party with other support.

The court must make whatever direction is appropriate to give effect to a party’s decision to have such a person present near the party and within the party’s sight.

Procedure if party not present on hearing date — s 57A

Where service has taken place and there is no appearance of the defendant, a final order may be made in accordance with s 57A.

In such circumstances, the court may consider it appropriate to clarify with the applicant whether there are any family law proceedings, children or other factors relevant to making a final order. If there is no interim order in existence, the final order has no effect until it is served on the defendant.

If different orders are sought in more restrictive terms than the initial application, Pt 4.2, PN 2/2012 requires the filing and service of an amended application unless the court is satisfied it is not in the interests of justice to do so.

The court has a discretion to hear and determine the matter in the defendant’s absence, if they are not present on the first or subsequent day on which the matter is listed for mention provided the court is satisfied the defendant had reasonable notice of the first return date or the date, time and place of the hearing: ss 57(3), 57(4).

[25-120] Making orders

Statutory power to make orders — the test to be applied

The statutory power to make AVOs is contained in ss 16 (with respect to ADVOs) and 19 (with respect to APVOs).

16 Court may make apprehended domestic violence order

(1)

A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears:

(a) 

the commission by the other person of a domestic violence offence against the person, or

(b) 

the engagement of the other person in conduct in which the other person:

(i) 

intimidates the person or a person with whom the person has a domestic relationship, or

(ii) 

stalks the person,

being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.

(2)

Despite subsection (1), it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if:

(a) 

the person is a child, or

(b) 

the person is, in the opinion of the court, suffering from an appreciably below average general intelligence function, or

(c) 

in the opinion of the court:

(i) 

the person has been subjected on more than one occasion to conduct by the defendant amounting to a personal violence offence, and

(ii) 

there is a reasonable likelihood that the defendant may commit a personal violence offence against the person, and

(iii) 

the making of the order is necessary in the circumstances to protect the person from further violence or

(d) 

the court is satisfied on the balance of probabilities that the person has reasonable grounds to fear the commission of a domestic violence against the person.

(2A)

An apprehended domestic violence order that is made in reliance on subsection (2)(d) cannot impose prohibitions or restrictions on the behaviour of the defendant other than those prohibitions that are taken to be specified in the order by section 36.

(3)

For the purposes of this section, conduct may amount to intimidation of a person even though:

(a) 

it does not involve actual or threatened violence to the person, or

(b) 

it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person.

Note:

Part 8 provides for the matters that may be included in orders. Section 35(1) provides that a court may impose such prohibitions or restrictions on the defendant’s behaviour as appear necessary to ensure the safety and protection of the PINOP and any children from domestic or personal violence. Section 35(2) identifies various prohibitions or restrictions that may be imposed.

Section 36 sets out the prohibitions taken to be specified in every AVO.

Part 9 contains additional provisions relevant to the making of orders.

Note:
  • The test does not require actual violence to have occurred, other conduct may be sufficient.

  • Be aware of the statutory definition of intimidation: s 7.

  • The test may also involve considerations of conduct towards someone the PINOP has a domestic relationship with.

  • Under s 16(2)(a) and (b), where the person is a child or vulnerable person there is no requirement that the person “in fact fears” an offence will occur or certain conduct will take place.

  • Under s 16(2)(d) where the court is satisfied there are reasonable grounds to fear but no fears are in fact held, the court may nevertheless make an order, but only in the mandatory terms: s 16(2A).

For APVOs, the test is set out in s 19.

Sections 17 (regarding ADVOs) and 20 (regarding APVOs) set out the matters to be considered by a court when determining whether or not to make an order and the prohibitions and restrictions which should be included. In addition to considering the safety and protection of the protected person and any child directly or indirectly affected by the conduct of the defendant alleged in the application (ss 17(1) for ADVOs and 20(1) for APVOs), the court must also consider the various matters identified in ss 17(2) and 20(2).

Where an order would prohibit or restrict access to the defendant’s residence, this includes the effects and consequences on the safety and protection of the protected person and any children living or ordinarily living at the residence if an order prohibiting or restricting access to the residence is not made.

The court is to ensure an order imposes only those restrictions that, in its opinion, are necessary for the safety and protection of the protected person and any child directly or indirectly affected: ss 17(3) and 20(3).

If a condition is sought to exclude a defendant from any premises or place and the court does not make the condition sought, the court is required to give reasons for not making such a condition: ss 17(4) and 20(4).

Consent orders — s 78

Consent orders (interim and final orders) involve two considerations:

1. 

A court does not need to be satisfied as to the statutory prerequisites for the making of the order as would otherwise be the case, if the parties consent to the making of the order: s 78 (1).

2. 

An order can be made by the court with the consent of the parties whether or not the defendant admits to all or any of the particulars in the complaint: s 78(2).

Despite this, the court is still empowered to conduct a hearing if the order is a final order and the court is of the opinion it is in the interests of justice to do so: s 78(3).

Note
  • Orders are made to prohibit or restrict a person from doing certain things.

  • The only exceptions are where a person is ordered to undertake or perform a task. For example, orders for the recovery of property and orders requiring a defendant to surrender a firearm and related licence.

  • Orders should be clear and unambiguous and contain no conflicts with other orders.

  • Orders should only be as restrictive as the circumstances dictate.

Restrictions on the inclusion of residential addresses on orders — s 43

When making an order, a court must not state the PINOP’s address unless satisfied:

  • the defendant already knows the address, or

  • it is necessary to achieve compliance and the personal safety or property of the PINOP would not be threatened, or

  • where the PINOP is over 16 years of age, that person consents: s 43(2).

Similar requirements apply to a health service provider’s residential address or intended residential address: s 44.

If the residential address must not be stated in an order because of s 44, then the address at which the health care provider ordinarily provides health care services is to be stated in the order instead: s 44(3).

Considerations in relation to children

See [26-040] Making orders in regard to specific issues that may arise in relation to children, including:

  • The test to be applied

  • Statutory obligations to extend orders to include children in certain circumstances

  • Variation of family law orders (see also Family law orders and contact with children at [26-040] Case management).

Statutory requirements to explain orders — s 76

When making an order and when varying an existing order, the court is to explain to the defendant and/or protected person (if either is present), “in language that is likely to be readily understood”, the following matters:

  • the effect of the order

  • the consequences that may follow a contravention of the order

  • the rights of both the defendant and PINOP.

The court has an obligation to cause a “written explanation of the matters required to be explained under this section to be given to the defendant and protected person”: s 76(3). The court’s printout of the orders contains the information to comply with this requirement.

Property recovery orders — s 37

For the proper procedure in ancillary property recovery orders: see Franks v Franks [2012] NSWCA 209.

The court has power when making a final or interim order to make property recovery orders where the defendant or protected person has left property at the premises occupied by the other party.

A property recovery order may:

  • direct access to particular premises to either party and/or a police officer or any person authorised by the court to remove property

  • specify the nature of access, on what terms and specify particular property or “personal property”.

Note:
  • a property recovery order does not allow for entry by force: s 37(3)

  • an order does not confer any right to take property to a person who does not have a legal right to possess it, even if specified in the order

  • it is an offence for a person to contravene a property recovery order or obstruct a person who is attempting to comply with an order: s 37(6).

An application for a property recovery order must include details of any family law property orders of which the applicant is aware and of any pending family law property applications: s 37(IC). Further, the court must make its own enquiries in this regard: s 37(1D).

Duration of orders

Final orders – s 79

A final order must stipulate a period of time.

The time ordered is discretionary and “is to be as long as is necessary, in the opinion of the court, to ensure the safety and protection of the protected person”: s 79(2).

If the court fails to stipulate a time, s 79(3) deems the order to be made for 12 months.

Interim orders — s 24

Interim orders remain in force until:

  • the interim order is revoked, or

  • a final order is made or served on the defendant, or

  • the application is withdrawn or dismissed.

When orders take effect

Section 77 provides for the preparation and service of a final apprehended violence order or interim order on the defendant. Generally, the order can be served by the Registrar where the defendant is in court: s 77(3). If the defendant is not present, the order is to be served by a police officer: s 77(4).

A person cannot be convicted of a breach of an ADVO or APVO unless the person was present in court when the order was made or was served with a copy of the order in accordance with the requirements of the Act: s 14(2).

[25-140] Court’s obligations when other proceedings are pending

Obligations to make interim orders when charges listed — s 40

If a person is charged with a serious offence, the court must make an interim order for the protection of the alleged victim of the offence unless the court is satisfied that the order is not required: for example, because an apprehended violence order has already been made against the person (this does not include a provisional order: see s 3).

On occasion, related charges and an AVO are listed on different court dates, or sometimes at different courts. Clarify with the prosecutor if it is unclear whether any charges have been or will be filed.

Obligations to make final orders upon finding of guilt — s 39

The court has an obligation to make a final order where a plea of guilty is entered or upon a finding of guilt for a serious offence after a hearing regardless of whether an interim AVO or an application for an AVO has been made: s 39(1). “Serious offence” has the same meaning as in s 40.

A charge dealt with under s 10 Crimes (Sentencing Procedure) Act 1999 without conviction still provides an obligation to make an order: s 3(4).

A court need not make a final order if satisfied it is not required: s 39(2).

[25-160] Costs — ss 99 and 99A

These sections deal in totality with the question of costs in AVO proceedings. Section 99 contains a number of different considerations regarding applications for costs that are dependent on whether the application was for an AVO issued by a police officer, or by a private applicant. Section 99(3) provides power to award costs to either the applicant or the defendant.

Section 99A prohibits an award of costs against an applicant in all AVO proceedings unless the court is satisfied that the application was “frivolous or vexatious”. It further sets out the limits on the award of costs against a police officer applicant in ADVO proceedings.

[25-180] Warrants — s 88

Discretionary powers — s 88(1), (2)

Where an application for a final order is made and service cannot be effected, the court may issue a warrant to arrest the defendant and bring that person before the court for the purpose of having the application dealt with: s 88(1). A warrant under s 88 is a procedural warrant only and may be issued notwithstanding no offence is alleged to have been committed: s 88(2). Warrants should only be issued as an option of last resort.

Mandatory requirements — s 88(3)

(3) 

The authorised officer must issue a warrant for the arrest of the defendant if it appears to the authorised officer that the personal safety of the person for whose protection the order is sought will be put at risk unless the defendant is arrested for the purpose of being brought before the court.

[25-200] Non-publication prohibitions — s 45

Section 45(1) prohibits the publication or broadcast of the name of a child:

(a) 

for whose protection or against whom an AVO is sought in any AVO proceedings, or

(b) 

who is likely to be a witness in any AVO proceedings, or

(c) 

who is likely to be mentioned or otherwise involved in any AVO proceedings.

The court may direct that the name of any person who is a person for whose protection an order is sought, or who appears, or is likely to appear as a witness or be mentioned in the proceedings, not be published or broadcast. This power extends to the publication both before and after the proceedings are commenced and before they are disposed of: s 45(2).

A contravention of subsection (1) or a direction given under subsection (2) is an offence: s 45(3).

Note:

these provisions are in addition to powers under the Court Suppression and Non-Publication Orders Act 2010.

[25-220] Variation of final AVOs or interim court orders

Sections 72A–74

An interested party (defined in s 72) or a police officer may apply for a variation or revocation of an order at any time: s 72A. This can include extending or reducing the order, amending or deleting any prohibitions, or adding additional prohibitions. The application must set out the grounds on which it is made: s 72A(3).

An application to vary or revoke a police initiated order where a protected person is a child requires leave of the court: s 72B. The court is not to grant leave if it is of the opinion the application would significantly increase the risk of harm to the child: s 72B(3).

An application to vary or revoke any police initiated order must be served on the Commissioner of Police: s 72C; see also s 72D which provides for notice in certain circumstances if the protected person is a child.

An order cannot be varied or revoked unless notice of the application is served personally or as the court otherwise directs on the other parties. In the case of an application made by a defendant, the application must be served on each protected person: s 73(4), (5).

If an application to extend an order is lodged with the court registry prior to the order expiring, the order may be extended without the defendant being served. The order may be extended for no more than 21 days (s 73(7), (9)), although further orders may be made under s 73(9) prior to the expiry of the extended order.

Otherwise, if an application for an extension of a final apprehended violence order or interim order is made before the order expires, the order is taken to continue in force until the application is dealt with by the court: s 73(8).

Discretion to vary existing order upon finding of guilt — s 75

If a person pleads guilty to or is found guilty of a “serious offence” a court may vary a final AVO or interim court order whether or not a variation application has been made: s 75(1).

In exercising this discretion, the section requires the court to consider whether “greater protection for the person against whom the offence was committed” is required.

Registration and variation of interstate orders

Sections 96–98 provide a scheme for the registration of interstate and New Zealand orders and variation of registered orders. These orders are registered by the registrar of the court but prior to registration may be referred to a magistrate for modification and/or extension.

The magistrate can not only vary the period which the order has effect in New South Wales but can also make such other adaptations and modifications which the magistrate considers necessary for its effective operation in New South Wales.

After these extensions and modifications, the registrar of the Local Court is under an obligation to register the order.

Section 98 enables a prescribed person to apply for the variation, extension, reduction or revocation of a registered interstate restraint order. Such an order is not to be varied, etc on the application of the defendant unless notice of the application is served on the person in need of protection.

Note:

Section 96(5) states that notice of the registration of an order (that has been varied or modified) is not to be served on the defendant unless the PINOP consents. The reasons behind s 96(5) are self-explanatory.

[25-240] Review and appeal provisions in relation to AVOs

Annulment of orders made or the dismissal of applications under s 84

Under s 84(1), a defendant may seek to annul an order made in his or her absence in the same manner as a s 4 application may be made against a conviction entered ex parte. The test under s 8(2) Crimes (Appeal and Review) Act 2001 is the same.

Under s 84(1A) an applicant who has had an application dismissed in his or her absence may seek an order to reinstate the proceedings. The court must be satisfied that, “having regard to the circumstances of the case, there is just cause for doing so”: s 84(1B).

Note:

Pt 11, PN 2/2012 sets out that other “interested parties” must be informed of such applications.

Appeals to the District Court, orders pending appeal — s 84(2)

Rights of appeal arise in the following circumstances:

  • a defendant appealing against an order being made

  • an applicant appealing against an application for an order being dismissed

  • costs orders

  • a party appealing against a variation or revocation of an order, or a refusal to vary or revoke an order

  • a party to a non-local DVO appealing against a variation or revocation of an order, or a refusal to vary or revoke such an order.

Presumption against stay of orders

Lodging a notice of appeal under s 84 does not have the effect of staying the operation of the order concerned: s 85.

A defendant may apply to the Local Court to stay the order pending the appeal but the court may only stay the order, “if satisfied it is safe to do so, having regard to the need to ensure the safety and protection of the protected or any other person”: s 85(2).

[25-250] National Domestic Violence Order recognition scheme

Part 13B of the Act, effective 25 November 2017, was inserted by the Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Act 2016. Part 13B provides for the NSW component of a national recognition scheme for domestic violence orders.

Note:

See Pt 13 for registration of “external protection orders” made in New Zealand and personal violence orders made in another State or Territory.

Under s 98Y, each of the following is a recognised DVO in NSW:

  • a local DVO (an ADVO or interim ADVO made under the Act: s 98T)

  • an interstate DVO made in a participating jurisdiction (specified in s 98U)

  • a foreign order that is a registered foreign order in any participating jurisdiction (specified in s 98V).

Any DVO made after 25 November 2017 becomes a recognised DVO when it is made: s 98Y(2). A DVO made in any jurisdiction can, upon application to the registrar, be declared to be a recognised DVO in NSW: ss 98ZZB, 98ZZC.

A recognised DVO (or recognised variation to a recognised DVO) is enforceable against the defendant in NSW (once the defendant has been properly notified of the making of the DVO under the law of the jurisdiction in which it was made): s 98ZD. Sections 98Z and 98ZA set out the circumstances in which a variation to, or revocation of, a recognised DVO is then recognised in NSW.

Recognised DVOs that are non-local DVOs can be varied or revoked as if they were local DVOs: ss 98ZL and 98ZM. See above [25-220] Variation of final AVOs or interim court orders. However, the court cannot vary or revoke a non-local DVO if it cannot be varied or revoked by a court in the jurisdiction in which the DVO was made: s 98ZM(2).

Applications to vary or revoke a non-local DVO are to be made, and may be dealt with, as if the DVO were a local DVO (subject to Div 3): ss 98ZN(1)–(2). A court has a discretion to hear or decline to hear such an application: s 98ZO(1). The matters the court may consider in making such a decision are set out in s 98ZO(2) and include:

(a) 

the jurisdiction in which the defendant and protected person/s under the DVO generally reside or are employed

(b) 

any difficulty the respondent to the proceedings may have in attending the proceedings

(c) 

whether there is sufficient information available to the court in relation to the DVO and the basis on which it was made

(d) 

whether any proceedings are being taken in respect of an alleged contravention of the DVO and the jurisdiction in which those proceedings are being taken

(e) 

the practicality of the applicant (if not the defendant under the DVO) applying for, and obtaining, a local DVO against the defendant with similar prohibitions or restrictions

(f) 

the impact of the application on children who are protected persons under the DVO

(g) 

any other matters the court considers relevant.

The court may decline to hear an application if satisfied there has been no material change in the circumstances on which the making of the order was based and that the application is in the nature of an appeal against the order: s 98ZO(3).

The right of appeal to the District Court against a decision relating to variation or revocation extends to non-local DVOs: s 84(2)(e).