Negotiating Apprehended Domestic Violence Orders: Achieving Workable Orders Where Children

NEGOTIATING APPREHENDED DOMESTIC VIOLENCE ORDERS: ACHIEVING WORKABLE ORDERS WHERE CHILDREN ARE INVOLVED

Kasey Pearce

Solicitor

Legal Aid NSW

1 Introduction

Apprehended violence orders (“AVOs”) are something of a hybrid form of law. While strictly speaking they are part of the civil law, they are often sought in circumstances where a criminal offence is alleged to have occurred, and so “travel” with a criminal charge. They also impact on the area of family law, in that they play a significant role in regulating relationships within families that are often in crisis, and in parenting proceedings conducted under the Family Law Act 1975.

Legal Aid NSW does not fund defendants in AVO proceedings, except in limited circumstances. However, most criminal law solicitors will have represented clients in relation to either an Apprehended Domestic Violence Order (“ADVO”) or an Apprehended Personal Violence Order (“APVO”), where the AVO is associated with a criminal charge. In these circumstances, the focus of the criminal law solicitor will generally be on the client's charges, on getting him[1] out on bail, on negotiating charges and facts, and on having the client acquitted, or if this is not possible, getting him the best result on sentence. If the solicitor has a copy of the client’s AVO on the file at all, it tends to tag along as something of an afterthought to the charges the client is facing.

No solicitor giving advice to, or representing, a client in relation to an AVO can afford to approach an AVO application in so limited a way. You have an obligation to do the best for your client in relation to that AVO, as much as you do with the charges that you are probably much more interested in. Your ethical obligations as a solicitor require you to advise your client of the implications of the AVO application, to take instructions in relation to the conditions sought in the application and to advocate as best you can on your client's behalf in order to achieve a workable AVO that both protects those who require the intervention of the law, but does not involve any greater imposition on the defendant than is necessary in all the circumstances. In no situation is this more important than where an AVO is sought in circumstances of family breakdown, where there are children involved.

2 The Legal Framework of AVOs

The power to make AVOs is dealt with under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) ("the Act"). This Act replaced "as a principal stand alone Act, with some modifications"[2] what used to be Part 15A of the Crimes Act 1900 (NSW). The Act commenced on 10 March 2008.

More recently, practice and procedure in relation to AVO proceedings in the Local Court has been supplemented by Local Court Practice Note No. 2 of 2012 (“the Practice Note”), which commenced operation on 1 May 2012.

The significant changes contemplated by the Practice Note would seem to be in response to the ever increasing length of court lists in AVO proceedings. The aim of the Practice Note is to bring proceedings in relation to AVOs in line with procedures applying to civil proceedings generally under the Civil Procedure Act 2005 and is based on a form of case management that was introduced at Blacktown Local Court some time ago.

3 The Content and Effect of ADVOs

3.1 The effect of AVOs generally

The making of an AVO, whether on an interim or final basis, irrespective of its terms, can have significant consequences for defendants, including the following:

(i) a firearms licence or weapons permit will be automatically suspended on the making of an interim AVO against the licence or permit holder[3] and automatically revoked on the making of a final AVO against the licence holder[4]. On the suspension or revocation of such licences or permits, the relevant firearms or weapons must be surrendered to the police;

(ii) the tenancy of a tenant or co-tenant under a residential tenancy agreement may be terminated if a final apprehended violence order is made that prohibits the tenant or co-tenant from having access to the residential premises under the agreement;[5]

(iii) a final AVO will be considered in a Working with Children Check;[6]

(iv) a party to parenting proceedings under the Family Law Act 1975 must inform the court of an ADVO (interim or final) that applies to the child or a member of the child’s family[7] and the court may draw “relevant inferences” from the ADVO itself or from the circumstances surrounding the making of the ADVO.[8]

Because of the potential far-reaching implications for defendants of an interim or final AVO being made, they must not be taken lightly. It is essential that solicitors advise all defendants in AVO matters, whether or not there are associated charges, of the implications of an AVO being made against them.

3.2 What is an ADVO?

An ADVO is an order made under Part 4 of the Act. An APVO is an order made under Part 5 of the Act.[9]

An application for an ADVO is made for the protection of a person (a “PINOP”) with whom the defendant has, or has had, a domestic relationship or, where there are two or more PINOPs, where the defendant has, or has had, a domestic relationship with at least one of them.[10]

A PINOP and defendant have, or have had a “domestic relationship” where they are, or have been:

· married;

· in a de facto relationship;

· in an intimate personal relationship (whether or not involving a relationship of a sexual nature);

· living in the same household (including living in a residential facility, but not including living in the same correctional or detention centre);

· in a relationship involving the PINOP’s dependence on the paid or unpaid care of the defendant;

· relatives, or

· in the case of Aboriginal or Torres Strait Islander persons, extended family or kin according to the indigenous kinship system of the person’s culture.[11]

A "relative" is defined in s 6 of the Act. In general terms it includes relations by blood, half or step relations, or relations of the defendant's spouse or de facto spouse.

If the defendant has not had a domestic relationship with at least one of the PINOPs then the application is to be treated as an application for an APVO.[12]

3.3 Person in need of Protection (“PINOP”)

There may be one or more PINOPs listed on an ADVO. They may be children or adults, or a combination of both.

3.3.1 Adult PINOPs

It is important to take instructions as to the relationship between the defendant and any adult PINOPs listed on an AVO application to ensure that the application is categorised correctly as an ADVO or APVO. This is because ADVOs and APVOs are, in some respects, treated differently under the Act (for example, the provisions relating to the mandatory inclusion of children on ADVOs in some circumstances and the availability of mediation for APVOs)[13].

3.3.2 Child PINOPs

Children may be listed as PINOPs on an ADVO in one of two ways. Firstly, they may themselves be either direct or indirect victims of domestic violence. Secondly, they may be included as a result of the operation of section 38(2) of the Act, which requires that, a court or authorised officer[14] making an interim ADVO must include as a protected person under the order any child[15] with whom an adult PINOP has a domestic relationship, unless the court or authorised officer is satisfied that there are good reasons for not doing so, and provided the reasons for not doing so are given.[16]

In practice police officers applying for ADVOs will generally include on an ADVO the names of children in a domestic relationship with an adult PINOP. However, sometimes not all children who are in a domestic relationship with an adult PINOP are included on an ADVO application. In cases where the PINOP and defendant live separately, children may be included who are in the primary care of the defendant, rather than the PINOP, or who, although living with the PINOP, spend time with the defendant. It is important to take detailed instructions in relation to the residence and contact arrangements for each child that is included as a protected person on an ADVO application.

The inclusion of a child PINOP on an ADVO application should be resisted in appropriate circumstances, in part because of the relevance of ADVOs in family law proceedings, but also because of the difficulties in varying ADVOs where a child is separately listed as a PINOP.[17]

Depending on your client’s instructions, and the conditions sought in the ADVO application, you might make submissions either at an interim or final stage to the effect that there are good reasons for not including a child as a PINOP on an ADVO. These submissions will have little chance of success where the grounds of the ADVO application allege, or any evidence presented at hearing establishes direct physical violence towards a child, or in the presence of a child, or a threat of violence towards a child. Such submissions are more likely to succeed where the conduct grounding the application consists of words only, or where there is no allegation that the child was present when the conduct complained of occurred.

Police Prosecutors are generally reluctant to consent to the removal of a child from an ADVO at either the interim or final stage, preferring to the leave to the court the decision as to whether or not a child should be separately listed as a PINOP on an ADVO.

3.4 The content of AVOs

When making an AVO, a court may impose such prohibitions or restrictions on the behaviour of the defendant as appear necessary or desirable to the court and, in particular, to ensure the safety and protection of the PINOP and any children from domestic or personal violence.[18]

Every AVO must include certain mandatory orders, which are always included as order 1(a), (b) or (c) on an AVO application or provisional order.[19]Any or all of the other listed prohibitions or restrictions in section 35(2) of the Act may also be included. In practice the orders sought by the Applicant are presented to the court by way of a list of section 35(2) orders, in which the orders sought are ticked.

While in the majority of cases the orders sought by investigating Police at first instance are both necessary and appropriate for the protection of those individuals on whose behalf the ADVO is brought to court. There are, however, a minority of cases where this will not be the situation. In such cases, at either an interim or final stage, the listed conditions may be varied, or additional conditions added, to the ADVO application by the police or the court depending on the requirements in individual cases.

3.4.1 Issues relating to specific orders

When considering the specific orders sought by an applicant for an ADVO, solicitors should take instructions from the client as to the existence of any parenting plans or parenting orders in relation to any children named as PINOPs on the ADVO or any children in care of either party. This is because in deciding whether or not to make or vary a final ADVO or interim ADVO, the court must consider whether contact between the PINOP, or between the defendant, and any child of either of those persons is relevant to the making or variation of the order, and have regard to any relevant parenting order of which the court has been informed.[20]

Under section 68R of the Family Law Act, a court can vary, discharge, or suspend an existing family law order, injunction or arrangement on the grounds that it has exposed, or is likely to expose, the protected persons to family violence.

Mandatory orders

By virtue of section 36 of the Act, the mandatory orders (orders 1. (a), (b) and (c)) are specified to apply to every person with whom a PINOP has a domestic relationship. For this reason, where an Applicant seeks only the mandatory orders, but includes a child PINOP on the application by virtue of section 38(2), there is an argument for the child being removed, as the child will be protected by the mandatory orders by virtue of their domestic relationship with the adult PINOP.

Residence orders

2. The defendant must not reside at the premises at which the protected person(s) may from time to time reside, or other specified premises.

While order 2 may be appropriate in many circumstances, it can sometimes be used by a PINOP as a substitute for an order for exclusive occupancy of the family home under the Family Law Act.

3. The defendant must not enter the premises at which the protected person(s) may from time to time reside or work, or other specified premises

You should also be aware of the operation of section 79 of the Residential Tenancies Act (see fn 7) in circumstances where a final AVO is made that includes orders 2 or 3.

4. The defendant must not go within [100 metres] of the premises at which the protected person/s may from time to time reside or work, or other specified premises.

Be aware that the inclusion of order 4 may cause problems to a defendant, where the arrangements for changeovers in relation to children are that they take place at the PINOPs home. In such cases order 3 might be preferable.

In deciding whether or not to make an order that would prohibit or restrict access to the defendant’s premises, the court must consider the accommodation needs of all parties, but “in particular, the protected person and any children”.[21]

Contact orders

5. The defendant must not approach or contact the protected person(s) by any means whatsoever except through the defendant's legal representative or as agreed in writing or as permitted by an order or directions under the Family Law Act 1975 as to counselling, conciliation, or mediation

This order is preferable to orders 6 or 7 when there are children involved and there is no parenting plan or family law orders in place. Some Magistrates will interpret the whole of this order as applicable only to circumstances involving "counselling, conciliation or mediation". It is sometimes better to ask that these words be deleted from the order, so that, if, for example, there is a written agreement between the parties as to when the defendant is to spend time with the children, then there is no question as to whether or not he or she is prevented from doing so by the ADVO.