Important changes have been made in NSW to AVO Laws which commenced on 3 December 2016.
The most important change is the test for granting Apprehended Domestic Violence Orders (ADVOs).
Until recently, the legal test required proof that the Person in Need of Protection (PINOP) –
- Had reasonable grounds to fear domestic violence; and
- In fact feared domestic violence (a subjective test).
Unless you could prove both parts of the test you would not succeed in obtaining an ADVO. The second subjective part of the test, however, has now been removed for all PINOPs.
This will allow the Court to make orders protecting PINOPs who may be reluctant to tell the Court they hold fears for their safety due to concerns they may have about retaliation from the Defendant.
However, in the absence of evidence that the PINOP in fact holds fear for their safety, a Court will only be able to impose mandatory conditions which are that a Defendant must not –
- assault or threaten the PINOP or a person with whom the PINOP has a domestic relationship,
- stalk, harass or intimidate the PINOP or a person with whom the PINOP has a domestic relationship,
- intentionally or recklessly destroy or damage any property that belongs to, or is in the possession of, the PINOP or a person with whom the PINOP has a domestic relationship (this is a new provision).
Additional discretionary conditions can also still be made on ADVOs where the above subjective test is able to be satisfied. The additional Orders may include Orders such as –
- prohibiting or restricting approaches by the Defendant to the PINOP,
- prohibing or restricting access by the Defendant to any or all of the following:
i. to any premises occupied by the PINOP from time to time or to any specified premises occupied by the PINOP,
ii. to any place where the PINOP works from time to time or to any specified place of work of the PINOP,
iii. to any specified premises or place frequented by the PINOP,
- prohibiting or restricting the Defendant from approaching the PINOP, or any such premises or place, within 12 hours of consuming intoxicating liquor or illicit drugs,
- prohibiting or restricting the possession of all or any specified firearms or prohibited weapons (within the meaning of the Weapons Prohibition Act 1998) by the Defendant,
- prohibiting or restricting specified behaviour by the Defendant that might affect the PINOP.
Other key changes are:
- An expanded range of offences are now categorised as ‘domestic violence offences’. Any offence committed with the intention to coerce, control or intimidate a PINOP will now meet the new definition.
- An expanded definition of ‘domestic relationship’ covers the relationship between a current and a former partner of the PINOP.
- The Children’s Court now has jurisdiction to make or vary ADVOs during children’s care proceedings.
- Provisional Orders are no longer limited to 28 days.
- Cross examination of child witnesses in ADVO proceedings by self-represented Defendants is prohibited – this can only take place through a lawyer or ‘suitable person’ appointment by the court.
- A Court can make a final ADVO in the absence of the PINOP and/or the Defendant – in the past if the PINOP was not present the application would have been dismissed.
- Police must be notified and have the right to appear before the Court in relation to any application to vary a police initiated ADVO.
- A Defendant can no longer apply to revoke an expired final ADVO.
Whilst we hope none of our clients ever find themselves in Apprehended Domestic Violence Proceedings, if you unfortunately find yourself in that position or you just want to know more about your legal rights, call Brazel Moore Lawyers on (02) 4324 7699 to speak to an experienced Lawyer today.