Local Court Bench Book — Apprehended Violence Orders

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

In John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512, Spigelman CJ stated at [20] (referring to repealed Pt 15A Crimes Act 1900):

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:

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 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.

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:

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.

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

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: s 17 for ADVOs and s 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 [22-060] Interim and provisional orders.

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

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

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 [22-140] 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 s 17 (for interim ADVOs) or s 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 r 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.

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 and, if the application is withdrawn or revoked, the provisional order is revoked: s 29(1)–(1A). Police must not make a provisional order that decreases the protection afforded to a person under an existing AVO: s 28B(2). Any such condition, if made, is of no effect: s 28B(3).

On the first return date, if a provisional order is in force, the court may dismiss the application under Pt 10 of the Act, revoke the provisional order, or make an interim or final AVO: s 32(1). If it does not, the provisional order becomes an interim AVO: s 32(2). A provisional order is revoked when the court makes an interim or final AVO and the defendant is present at court or, if the defendant is not at court, a copy of the interim or final AVO is served on them: s 32(3)–(4).

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 and a further provisional order may not be made in respect of the same incident: s 34(1).

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.

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: s 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:

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).

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.

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:

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.

Note:

When an application is connected to a domestic violence offence, Ch 6, Pt 4B, Div 5 Criminal Procedure Act applies to the complainant’s evidence in those proceedings: s 289T(1)(b). The complainant’s evidence is to be heard in closed court unless the court directs otherwise: s 289U. They are also entitled to give evidence by AVL or two way communication technology, and have visual/other contact with an defendant restricted: s 289V. The prosecution must provide the court with a “Notice: Evidence of domestic violence complainant in criminal proceedings” at the first mention (Attachment E of PN 1/2012). The complainant cannot be examined by a self-represented defendant, but must be examined through a court appointed questioner: s 289VA. See further: [8-000] Evidence by domestic violence complainants.

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.

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 [24-040] 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.

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).

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.

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: s 57(3), (4).

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

Section 36 sets out the prohibitions taken to be specified in every AVO. These include a prohibition on intentionally or recklessly harming an animal that belongs to, or is in the possession of, the protected person or a person with whom they have a domestic relationship: s 36(c).

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. For applications for an AVO or to vary or revoke an AVO, the definition of intimidation includes conduct that causes a reasonable apprehension of harm to an animal that belongs or belonged to, or is or was in the possession of, the person or another with whom they have a domestic relationship: s 7(1)(c).

• 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).

If there is any inconsistency between AVOs made in relation to a defendant and more than one order applies to the same protected person, the most recent prohibition or restriction prevails (subject to s 28B which concerns provisional orders by police): s 81A.

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

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).

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

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).

See [24-040] Making orders in regard to specific issues that may arise in relation to children, including:

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 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.

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:

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).

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).

See also Domestic violence offences at [5-500]ff.

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.

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.

A 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, including in another court, regardless of whether an interim AVO or an application for an AVO has been made: s 39(1), (1A). “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).

See also Domestic violence offences at [5-500]ff.

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.

An interested party (defined in s 72) or a police officer may apply for a variation or revocation of an order: 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 an order may only be made during the order’s currency, and not after it has expired: Wass v DPP (NSW) [2023] NSWCA 71 at [59].

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). See also s 79B(6), which makes clear the power to revoke or vary an indefinite order in s 79B(4) does not apply to police-initiated orders where the protected person (or one of the protected persons) is a child.

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).

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.

Rights of appeal arise in the following circumstances:

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).