AVO proceedings involving children

[24-000] Introduction

This chapter outlines:

The jurisdiction of the Children’s Court to make apprehended violence orders
Considerations in relation to children that may arise in the course of AVO proceedings.

Note:: All references to sections in this chapter are, unless otherwise stated, references to sections of the Crimes (Domestic and Personal Violence) Act 2007. References to PN 2/2012 are to Local Court Practice Note 2 of 2012, Domestic and Personal Violence Proceedings. See generally [22-000] Apprehended Violence Orders.

[24-020] Jurisdiction of the Children’s Court

The Children’s Court has jurisdiction to hear and determine an application for an apprehended violence order in the following circumstances:

Proceedings involving a child defendant

Where a child under the age of 18 years is the defendant, the matter must be dealt with in the Children’s Court. There is no statutory provision to allow applications involving an adult and child defendant to be heard together, despite the same subject matter and common witnesses.

See Children’s Court Practice Note 8 regarding the procedure to be adopted in the Children’s Court on the first listing of the matter. A court support officer and/or legal representative may be involved to consider if referral to mediation and/or counselling is more appropriate. In addition, there may be an adjournment of the proceedings by consent, between 3–5 months with interim orders to facilitate this process.

Power to make, vary or revoke AVO in care proceedings

The Children’s Court may make an AVO in care proceedings under the Children and Young Persons (Care and Protection) Act 1998, for the protection of the child to whom the proceedings relate and any relative of the child residing at the same location. The order may be made either on application of a party to the proceedings or of the court’s own motion: s 40A(2).

The court may also vary or revoke an order, but not if it is aware the defendant is subject to criminal proceedings relating to some or all of the circumstances giving rise to the order: s 40A(2), (3). Sections 48(3) and 72B (containing general restrictions on the making of variation and revocation applications) do not apply to orders under this section: s 40A(6).

The Commissioner of Police and the Secretary of the Department of Family and Community Services (FACS) must be notified before the court makes, varies or revokes an order under this section: s 40A(4), (5). Each of those parties has standing to appear in the proceedings: s 40A(4), (5).

Note:: standing in proceedings under s 40A is delegated under instrument by the Commissioner of Police to all police prosecutors. As the Secretary, FACS is a party in care proceedings, the legal representative employed or engaged by FACS in those proceedings will appear in any s 40A component of the proceedings.

The parties to the care proceedings and the defendant also have standing to appear in respect of the making of the AVO: s 40A(7).

[24-040] Considerations in proceedings involving children

Applications for orders

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

A private applicant may seek orders that extend to the protection of a child. However, the court may refer such an application to the Commissioner of Police if it considers it would be in the best interests of the child for a police officer to appear in the application: s 48(4A).

Case management

Determination if child to give evidence

The Act presumes that children “should not be required to give evidence in any manner about a matter unless the court is of the opinion that it is in the interests of justice for the child to do so”: s 41(4).

Definition — s 3, “child” means a person under the age of 16 years.

It will be apparent in many cases that a child may be called. In police applications, it should be ventilated at an early stage. However, in matters where parties are unrepresented it may not be immediately apparent and may be problematic.

A determination under s 41(4) should be made prior to allocating a hearing date. If CCTV facilities are required, that may affect the venue and date allocated in the court diary.

When making a determination under s 41(4), take into account the objects of the Act and s 41. This must be balanced against the nature of the order sought and the reasons why a party is requesting the court to allow a child to be called to give evidence.

Family law orders and contact with children

Where it is apparent that there are children of the relationship living in the household of the protected person and/or the defendant, the court should raise the matter with the parties (particularly unrepresented parties) prior to making any order.

When deciding whether or not to make or vary an AVO, the court is required to consider:

the safety and protection of the protected person and any child directly or indirectly affected by domestic or personal violence (s 42(2)), and
whether contact between the protected person or between the defendant and any child of either of those persons is relevant to the making or variation of the order, having regard to any relevant parenting order of which the court has been informed (s 42(3)).

An applicant has a positive duty to inform the court of any existing or pending parenting orders that may directly or indirectly affect a child, and the court is to inform the applicant of this obligation: s 42(1). Although a contravention of the section does not invalidate an order or variation (s 42(4)), Part 8.3 PN 2/2012 reinforces these requirements.

Procedures at hearing

Proceedings to be held in absence of public — ss 41, 41AA

Proceedings involving children/young persons, or where a child/young person is called as a witness, are to be heard in the absence of the public unless the court otherwise directs: ss 41(2), 41AA. “Young person” means a person over 16 years of age but under the age of 18 years: s 41AA(2).

Note:: Section 41AA, which was inserted by the Crimes Legislation Amendment (Victims) Act 2018, commenced on 1 December 2018 and only applies to proceedings commenced from that date.

Even if the proceedings are open to the public, the court may direct any person, other than a person directly interested in the proceedings, to leave the court during the examination of any witness: s 41(3).

Evidence from children

If a child is required to give evidence in AVO proceedings, the evidence should be given in accordance with Div 3 and 4, Pt 6, Ch 6, Criminal Procedure Act 1986 (ss 306R–306ZI): ss 41(5) and (6). These provisions deal with the giving of evidence by vulnerable persons (including children). They enable evidence of the child’s interview by police to be given by a recording, and the child to give evidence in the proceedings by CCTV.

See Pt 8 PN 2/2012 and Evidence from vulnerable persons at [10-000] for a full discussion of these statutory requirements; also Procedures for evidence from vulnerable persons at [22-100].

Note:: s 294B(1A), Criminal Procedure Act, which extends special procedures for taking the evidence of the complainant in sexual offence proceedings to the complainant’s evidence in AVO proceedings expressly does not apply in the case of a child who is covered by Div 4, Pt 6, Ch 6: s 294B(2).

Right to support person when giving evidence — s 46

A party to AVO proceedings (whether a PINOP or defendant), including a child, has the right to have a supportive person present when giving evidence in the proceedings: s 46(2). That person may be chosen by the party, and may include (without limitation) a parent, guardian, relative or friend: s 46(3)(a).

The court must make whatever direction is appropriate to give effect to a party’s decision to have a supportive person present near the party, and within the party’s sight, when the party is giving evidence: s 46(4).

Questioning of child witnesses — s 41A

A child giving evidence in ADVO proceedings is not to be cross-examined by an unrepresented defendant, but may be asked questions via a lawyer or other suitable person appointed by the court: s 41A(1).

Section 41A codifies the existing provision in PN 2/2012 at Pt 8.1, so far as ADVO proceedings are concerned. The practice note further applies in APVO proceedings.

Prohibition against publication of child’s name and identifying information

Section 45 creates an offence for the publication of the name of, or any information, picture or material that identifies a child or is likely to lead to the identification of a child involved in apprehended violence proceedings. The protection extends to a child for whose protection an order is sought who appears, or is likely to appear as a witness, or who is reasonably likely to be mentioned in proceedings: s 45(1).

See also Civil Trials Bench Book, “Closed court, suppression and non-publication orders” at [1-0400].

Making orders

Test to be applied

When making an ADVO, 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” that the defendant will commit a domestic violence offence or engage in stalking or intimidation.

When making an APVO, a substantially identical provision is found in s 19(2).

For considerations associated with setting the duration of an order, see s 79 (for APVOs) and s 79A (for ADVOs). The default period of an ADVO where the defendant is under 18 years old is 1 year: s 79A(1). However the court may specify a different period considering the factors outlined in s 79A(2). An indefinite order may not be made against a person who is under 18 when the application was made: s 79B(1)(b).

Under ss 17 and 20, certain considerations apply to the making of an AVO where a child is directly or indirectly affected by the defendant’s alleged conduct. These include:

(a): where an order that would prohibit or restrict access to the defendant’s residence — 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
(b): any hardship to the protected person and any children that may be caused by making or not making the order
(c): the accommodation needs of all parties, particularly the protected person and any children.

Statutory obligations for children when making an order — s 38

Section 38(2) requires the court to extend the operation of any order made to include any children with whom the PINOP has a domestic relationship. If a court decides not to do this, it must give reasons for not doing so: s 38(3).

Variation of family law orders

In making an ADVO, defined as a family violence order in s 3 Family Law Act 1975 (Cth), the court may revive, vary, discharge or suspend any parenting order, recovery order or injunction made under s 68R Family Law Act. “Family violence” is defined in s 4AB Family Law Act. It provides that a child is “exposed to family violence” for the purposes of the Act if the child sees or hears family violence, or otherwise experiences the effects of family violence (s 4AB(2)), and sets out examples of situations that may constitute such exposure (s 4AB(3)).

Section 68R(3) sets out limits on the court’s power. It may not alter an existing family law order unless also making or varying an interim or final family violence order, and must have material before it that was not before the court that made the family law order or injunction.

The court’s jurisdiction derives from s 69J Family Law Act.

Practical considerations

Note the following:

the statutory prohibitions under s 68R(3)
the statutory prohibition against discharging a family law order or injunction that applies under s 68R(4) if the court is only making an interim order, and
factors that must be considered under s 68R(5). The court must:
- have regard to the purposes of this Division (as stated in s 68N, namely the resolution of inconsistencies between family law and family violence orders, ensuring family law orders do not expose people to family violence, and ensuring that the best interests of children are met), and
- have regard to whether contact with both parents is in the best interests of the child concerned (see ss 60CB–60CG), and
- be satisfied that it is appropriate to vary, discharge or suspend a family law order or injunction because a person has been exposed, or is likely to be exposed, to family violence as a result of the operation of that order or injunction, in circumstances where the order or injunction was inconsistent with an existing family violence order at the time it was made or granted.

The Family Court has similar powers in reverse situations under s 68Q Family Law Act.

The court should exercise caution when utilising powers under s 68R and be satisfied the application is not simply seeking to appeal or revisit existing family law orders.

Variation and revocation applications

Generally, an application to vary or revoke an AVO may be made only by a police officer or by an interested party (such as the defendant or a protected person, and in the case of a child who is a protected person, a parent or the Secretary, Department of FACS) in relation to the order: s 72A(2). However, limitations apply where a protected person under the order is a child.

Police-initiated orders where a protected person is a child

An application by an interested party 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:

Hear the application, unless satisfied that notice has been served on the Commissioner of Police in accordance with the rules of court (see Pt 5, Local Court Rules 2009): s 72C(1)(b).
Grant leave, if it is of the opinion the application would significantly increase the risk of harm to the child: s 72B(3).

The Commissioner of Police has standing to appear in proceedings for the variation or revocation of any police-initiated order: s 72C(2).

Other orders where a protected person is a child

Under s 72D, where an AVO was not police-initiated but a protected person under the order is a child, the court may, if considering it to be in the best interests of the child to do so:

Notify the Commissioner of Police and any interested party of an application to vary or revoke the order, and
Give the Commissioner and interested party standing to appear in the proceedings.