The laws relating to AVOs will change on 3 December 2016

December, 2016By Matthew Carney, Criminal Lawyer

Legal DisclaimerThis presentation is offered for general information

purposes only. It does not constitute specific legal

advice or opinion. You should not act or rely upon any

of the information contained within this seminar

without seeking the advice of a qualified solicitor who

specialises in the particular area of expertise and

jurisdiction that you require.

Introduction

Changes to the NSW Crimes (Domestic and Personal Violence) Act will commence on 3 December (2016) that will change the test for granting Apprehended Domestic Violence Orders (ADVOs).

Previous Laws

Previously, the court required proof that the Person in Need of Protection (PINOP) had reasonable grounds to fear and in fact feared domestic violence.

Changes to the test

The subjective part of the test related to ‘reasonable grounds’ has now been removed for all PINOPs.

This will allow courts to make orders protecting PINOPs who may be reluctant to express fear due to concerns about retaliation from an alleged perpetrator.

The Conditions

The conditions of an ADVO have also been changed, with a new automatic condition prohibiting a defendant from damaging or destroying the PINOP's property.

Additional Discretionary Conditions

Additional discretionary conditions can still be made on ADVOs where the subjective test is satisfied.

There are now two forms of ADVOs that will be made, depending on what evidence from the PINOP is available to the Court.

Other Changes

Other important changes are:1. an expanded range of offences are categorised as "

domestic violence offences". Any offence committed with the intention to coerce, control or intimidate a PINOP will now meet this definition;

2. an expanded definition of "domestic relationship" to cover the relationship between a current and former partner of the PINOP;

3. the Children's Court now has jurisdiction to make or vary ADVOS during care proceedings;

Other Changes

4. Provisional Orders are no longer limited to 28 days;

5. 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" appointed by the court;

6. a court can make a final ADVO in the absence of the PINOP and/or the defendant;

7. Police must be notified and given standing in relation to any application to vary a police-initiated ADVO;

Other Changes

8. a defendant can no longer apply to revoke an expired final ADVO (this has a significant impact for individuals wanting to reobtain a firearms license);

9. a new costs provision expands current restrictions on costs orders against police in ADVO matters.

New Plain English Apprehended Domestic Violence Orders (ADVO) will also roll out state-wide on 3 December 2016.

Court’s Reasoning

Attorney General Gabrielle Upton stated:

"these new ADVOs will help break the cycle of violence by using clear and simple language so there is no excuse for breaching the order we have removed all the complex legal jargon and spelled out a defendant's obligations in Plain English, so they can no longer claim they didn't understand the meaning or consequences of the ADVO".

Relevant Statistics

The Bureau of Crime Statistics and Research has found four out of five ADVOs put a stop to violence, intimidation and harassment, and the new ADVOs are designed to increase compliance, improve enforcement and reduce pressure on the court system.

Languages & Focus on Penalties

The new ADVO is also being translated into 29 different languages to assist people whose first language is not English.

In addition, the penalties for breaching an order, including up to two years in prison, have been moved to the top of the document so it's now the first thing perpetrators see.

Important to get advice

If you have been served with an ADVO or APVO it is extremely important that you obtain specialised criminal law advice from an experience criminal lawyer.

Turnbull Hill Lawyers – Contact UsIf you have any further questions about AVOs or you'd like to discuss a related matter, please call:Matthew Carney on 1800 994 279 or email him.

We will endeavour to respond to your enquiry within 24 hours.

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