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).

It will be apparent in many cases that a child may be called to give evidence. 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.

Where children of the relationship are living in the household of the protected person and/or the defendant, the court should raise the matter with the parties (particularly unrepresented parties) before making any order.

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

An applicant has a positive duty to inform the court of any relevant existing or pending parenting orders that relate to contact between the protected person, or between the defendant, and any child of either of those persons, and the court is to inform the applicant of this obligation: s 42(1), (5). 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.

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(1). “Young person” means a person over 16 years of age but under 18 years of age: s 41AA(2).

Even if the proceeding to which s 41 applies 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).

If a child is required to give evidence in AVO proceedings, the evidence should be given in accordance with Divs 3 and 4, Pt 6, Ch 6, Criminal Procedure Act 1986 (ss 306R–306ZI): s 41(5), (6). The provisions enable evidence of the child’s interview by police to be given by a recording (Div 3), and the child to give evidence in the proceedings by CCTV: Div 4. Part 6 applies to a child under 16 years of age at the time the evidence is given: s 306P Criminal Procedure Act. However, a child over 16 years of age but under 18 years of age may also give evidence by CCTV in AVO proceedings unless there are special reasons in the interests of justice for the evidence not to be given by such means: s 306ZB(2), (4), (5) Criminal Procedure Act.

See further at Pt 8 PN 2/2012; Evidence from vulnerable persons at [10-000]; 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).

A party to AVO proceedings (whether a person in need of protection (PINOP) or defendant), has the right to choose a support person to be present near them when giving evidence: s 46(2). That person may include (without limitation) a parent, guardian, relative or friend: s 46(3)(a). Section 46 includes a note regarding the similar provisions in s 306ZK Criminal Procedure Act.

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

A child giving evidence in apprehended domestic violence order (ADVO) proceedings is not to be questioned 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 apprehended personal violence order (APVO) proceedings.

Section 45 provides it is an offence to publish or broadcast 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 AVO 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), (5).

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

Where the PINOP in an ADVO application is a child, it is not necessary for the court to find that the person “in fact fears” the defendant will commit a domestic violence offence or engage in stalking or intimidation: s 16(2)(a).

A substantially identical provision is found in s 19(2) concerning APVOs.

For considerations regarding setting the duration of an order, see s 79 (APVOs) and s 79A (ADVOs). The default period of an ADVO where the defendant is under 18 years old is 1 year: s 79A(6). However, the court may specify a different period considering the s 79A(2) factors: s 79A(1)(a). An indefinite order may not be made against a person who is under 18 years of age 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:

The court must extend the operation of any AVO to include any children with whom the PINOP has a domestic relationship: s 38(2). The court is not required to comply with s 38(2) if satisfied there are good reasons for not doing so and gives the reasons: s 38(3).

In making or varying an ADVO, defined as a family violence order in s 4 Family Law Act 1975 (Cth), the court may revive, vary, discharge or suspend any parenting order, recovery order or injunction made under the Family Law Act: Family Law Act (Cth), s 68R(1). The Family Law Act 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(3)), and sets out examples of situations that may constitute such exposure: s 4AB(4).

Section 68R(3) Family Law Act (Cth) limits the court’s power. The court may not alter an existing family law order or injunction 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:

Section 68Q Family Law Act (Cth) provides for the Family Court’s powers in relation to inconsistent family law orders and family violence orders.

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.

An interested party seeking to vary or revoke a police-initiated order requires leave if the protected person is a child: s 72B. The court is not to:

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

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: