Published by Geoff Harrison | 8 July 2023
The court can make an Apprehended Domestic or Personal Violence Order (ADVO/APVO), if satisfied to the lower standard of proof ie. on the balance of probabilities if a person fears and has reasonable grounds to fear and in fact fears, the commission of a domestic/personal violence offence, or intimidation or stalking by another person; and in the opinion of the court, the conduct is sufficient to warrant the making of the order (see ss16 & 19 below of the Crimes (Domestic and Personal Violence) Act 2007 - 'the Act'). The procedure for hearings in relation to an Apprehended Domestic or Personal Violence Order is governed by Practice Note No. 2 of 20212 of the Local Court (set out below).
Orders for costs following an ADVO/APVO hearing can only relate to professional costs, and even then, for an application for an AVO, the application must have been frivolous or vexatious. Where the applicant in an ADVO is a police officer, professional costs cannot be awarded unless:
the applicant made the application knowing it contained matter that was false or misleading in a material particular (this is a pointless condition or hurdle as essentially it must be demonstrated that an officer has attempted to pervert the course of justice); or
the applicant has deviated from the reasonable case management of the proceedings (see: Constable Redman v Willcocks [2010] NSWSC 1268).
The court must make an AVO if a person pleads guilty or is found guilty of a serious offence - such as a Domestic Violence Offence (see ss39 & 40 of the Act). If the court makes an ADVO or Interim Order for the protection of a person over 18 years of age, the court must include any child under the order, that the person has a domestic relationship with; unless there are good reasons for not doing so (see s38 of the Act below and Second Reading Speech).
It is not a criminal conviction to have an ADVO/APVO made against you, as an order for an ADVO/APVO is not an offence as per s5 of the Criminal Records Act 1991. However, the court does have the power to revoke an AVO upon application by an interested party, as per s78 of the Act; however, the order must be current at the time of the application to revoke: Wass v Director of Public Prosecutions.
Cases:
Other Sources:
Crimes (Domestic and Personal Violence) Bill 2007: Second Reading Speech
The Womans's Legal Service NSW Chapter 3: Apprehended Violence Orders.
The National Domestic and Family Violence Bench Book (other than the terminology used such as perpetrator and victim when it is advice for matters that are before the court; hence, neither of the terms are appropriate).
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Extracted Legislation:
Crimes (Domestic and Personal Violence) Act 2007
16 COURT MAY MAKE APPREHENDED DOMESTIC VIOLENCE ORDER
(1) A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears--
(a) the commission by the other person of a domestic violence offence against the person, or
(b) the engagement of the other person in conduct in which the other person--
(i) intimidates the person or a person with whom the person has a domestic relationship, or
(ii) stalks the person,
being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.
(2) Despite subsection (1), it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if--
(a) the person is a child, or
(b) the person is, in the opinion of the court, suffering from an appreciably below average general intelligence function, or
(c) in the opinion of the court--
(i) the person has been subjected on more than one occasion to conduct by the defendant amounting to a personal violence offence, and
(ii) there is a reasonable likelihood that the defendant may commit a personal violence offence against the person, and
(iii) the making of the order is necessary in the circumstances to protect the person from further violence, or
(d) the court is satisfied on the balance of probabilities that the person has reasonable grounds to fear the commission of a domestic violence offence against the person.
(2A) An apprehended domestic violence order that is made in reliance on subsection (2)(d) cannot impose prohibitions or restrictions on the behaviour of the defendant other than those prohibitions that are taken to be specified in the order by section 36.
(3) For the purposes of this section, conduct may amount to intimidation of a person even though--
(a) it does not involve actual or threatened violence to the person, or
(b) it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person.
Note : Part 8 provides for the matters that may be included in orders. Part 9 contains additional provisions relevant to the making of orders.
17 MATTERS TO BE CONSIDERED BY COURT
(1) In deciding whether or not to make an apprehended domestic violence order, the court must consider the safety and protection of the protected person and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order.
(2) Without limiting subsection (1), in deciding whether or not to make an apprehended domestic violence order, the court is to consider--
(a) in the case of 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, and
(b) any hardship that may be caused by making or not making the order, particularly to the protected person and any children, and
(c) the accommodation needs of all relevant parties, in particular the protected person and any children, and
(d) any other relevant matter.
(3) When making an apprehended domestic violence order, the court is to ensure that the order imposes only those prohibitions and restrictions on the defendant that, in the opinion of the court, are necessary for the safety and protection of the protected person, and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order, and the protected person's property.
(4) If an application is made for an apprehended domestic violence order that prohibits or restricts access by the defendant to any premises or place and the court hearing proceedings in respect of the application decides to make an order without the prohibition or restriction sought, the court is to give reasons for that decision.
19 COURT MAY MAKE APPREHENDED PERSONAL VIOLENCE ORDER
(1) A court may, on application, make an apprehended personal violence order if it is satisfied on the balance of probabilities that a person has reasonable grounds to fear and in fact fears--
(a) the commission by the other person of a personal violence offence against the person, or
(b) the engagement of the other person in conduct in which the other person--
(i) intimidates the person, or
(ii) stalks the person,
being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.
(2) Despite subsection (1), it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if--
(a) the person is a child, or
(b) the person is, in the opinion of the court, suffering from an appreciably below average general intelligence function.
(3) For the purposes of this section, conduct may amount to intimidation of a person even though--
(a) it does not involve actual or threatened violence to the person, or
(b) it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person.
Note : Part 8 provides for the matters that may be included in orders. Part 9 contains additional provisions relevant to the making of orders.
38 APPREHENDED VIOLENCE ORDERS MADE BY COURT OR AUTHORISED OFFICER CAN ALSO PROTECT PERSONS
(1) The power of a court or an issuing officer under this Act to make an apprehended violence order for the protection of a person extends to authorise the making of such an order for the protection of a person with whom the person for whose protection the order was sought has a domestic relationship.
(2) If the court makes an apprehended domestic violence order, or the court or issuing officer makes an interim apprehended domestic violence order, for the protection of a person of or above 18 years of age, the court or issuing officer must include as a protected person under the order any child with whom the person of or above 18 years of age has a domestic relationship.
(3) A court or issuing officer is not required to comply with subsection (2) if satisfied that there are good reasons for not doing so. However, in that case the court or issuing officer is to give the reasons for not doing so.
(4) For the avoidance of doubt, subsections (2) and (3) are subject to sections 41, 41AA and 42.
(5) An apprehended violence order may be made by a court for the protection of a child in accordance with this section even though an application for the order was not made by a police officer.
70 WITNESSES AND PRODUCTION OF EVIDENCE
The provisions of Part 3 of Chapter 4 of the Criminal Procedure Act 1986 apply, with any necessary modifications, to application proceedings in the same way as they apply to proceedings for summary offences under that Act.
99 COSTS
(1) In this section--
"professional costs" means costs relating to professional expenses and disbursements (including witnesses' expenses) in respect of proceedings before a court (but not court fees payable to a court).
(2) Costs, other than professional costs, are not to be awarded in apprehended violence order proceedings.
(3) A court may, subject to section 99A, award professional costs in apprehended violence order proceedings to the applicant for the order or decision concerned or the defendant in accordance with this section.
(4) If professional costs are awarded against a person under this section, the costs must be paid by the person to the registrar of the court, for payment to--
(a) the defendant, in the case of costs awarded against an applicant, or
(b) the applicant, in the case of costs awarded against a defendant.
(5) A court may make an order as to professional costs at the end of apprehended violence order proceedings or following the adjournment of the proceedings.
(6) An order as to professional costs may be made following the adjournment of the proceedings only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made.
(7) An order as to professional costs made following the adjournment of proceedings may be made whatever the result of the proceedings and may provide for the determination of the amount at the end of the proceedings.
(8) An order as to professional costs may specify the amount of any professional costs payable or may specify that it is to be the amount as agreed or assessed.
(9) The State is to indemnify a police officer, who acts in his or her capacity as a police officer in apprehended violence order proceedings, for any professional costs awarded against the police officer personally.
(10) This section applies to apprehended violence order proceedings, including apprehended violence order proceedings conducted in the absence of one or more of the parties.
99A LIMITATIONS ON PROFESSIONAL COSTS BEING AWARDED
(1) A court cannot, in apprehended violence order proceedings, award professional costs against an applicant who is a protected person in respect of the order unless satisfied that the application was frivolous or vexatious.
(2) A court cannot, in apprehended domestic violence order proceedings, award professional costs against an applicant who is a police officer unless satisfied that--
(a) the applicant made the application knowing it contained matter that was false or misleading in a material particular, or
(b) the applicant has deviated from the reasonable case management of the proceedings so significantly as to be inexcusable.
(3) The mere fact that a protected person does any one or more of the following in relation to apprehended domestic violence order proceedings does not give rise to a ground to award costs against an applicant who is a police officer and who made the application in good faith--
(a) indicating that he or she will give unfavourable evidence,
(b) indicating that he or she does not want an apprehended domestic violence order or that he or she has no fears,
(c) giving unfavourable evidence or failing to attend to give evidence.
(4) This section has effect despite section 99 or any other provision of this or any other Act or law.
(5) In this section--
"apprehended domestic violence order proceedings" means proceedings under this Act in relation to an apprehended domestic violence order or an application for an apprehended domestic violence order.
"professional costs" has the same meaning as in section 99.
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Local Court Practice Note No. 2 of 2012
Issued: 24 April 2012
Commences: 1 May 2012
Amended: 30 July 2012
Domestic and Personal Violence Proceedings
Contents
Part 1 Commencement and Application of Practice Note…………………………………..........1
Part 2 Definitions……………………………………………………………………………………..1
Part 3 Purpose………………………………………………………………………………………..1
Part 4 Orders sought in the absence of a defendant……………………………………………….1
Part 5 Procedure at interim hearing………………………………………………………………….2
A. Where application brought by police officer and protected person and defendant both absent…………………………………………………………………………………………..........2
B. Where defendant and protected person both present and application contested…….......2
Part 6 Use of written statements at hearings………………………………………………………....3
Part 7 Procedure at final hearing – where no consent to the order and s 39 does not apply….....4
A. Where defendant present……………………………………………………………………..4
B. Where defendant absent……………………………………………………………………...5
Part 8 Procedures for protection of children……………………………………………………….....5
Part 9 Applications for variation or revocation of orders where contested……………………........5
Part 10 Applications for revocation of expired Apprehended Violence Order…………………......6
Part 11 Applications for annulment of orders………………………………………………………...6
Attachment A Timetable for statements
Part 1 Commencement and Application of Practice Note
1.1 This Practice Note commences on 1 May 2012.
1.2 This Practice Note applies to application proceedings pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (‘the Act’) in the Local Court and is intended to reflect the legislative objective set out in sections 9 and 10 of the Act.
Part 2 Definitions
2.1 In this Practice Note:
‘AVO’ means an apprehended violence order within the meaning of the Act.
‘ADVO’ means an apprehended domestic violence order within the meaning of the Act.
‘APVO’ means an apprehended personal violence order within the meaning of the Act.
‘business day’ means a day that is not on a weekend or gazetted as a public holiday in the State of New South Wales.
‘written statement’ means a written statement prepared in accordance with the form and requirements, and with the evidentiary effect, set out in Division 3 of Part 2 of Chapter 3 of the 1986 Act.
‘1986 Act’ means the Criminal Procedure Act 1986.
Part 3 Purpose
3.1 This Practice Note is issued for the purpose of providing for a range of procedural measures in application proceedings under the Act.
3.2 The object of this Practice Note is to promote consistency and efficiency in the determination of application proceedings and procedural fairness to all parties, having regard to the objects of the Act, and to facilitate the “just, quick and cheap” resolution of proceedings in accordance with the overriding purpose set out in s 56 of the Civil Procedure Act 2005.
3.3 This Practice Note is to be read in conjunction with Chapter 10 of Practice Note Crim 1.
Part 4 Orders sought in the absence of a defendant
4.1 This Part applies in respect of application proceedings conducted in the absence of the defendant.
4.2 Subject to section 75 of the Act:
(a) Where, in the course of proceedings, the applicant seeks any additional or alternative orders to those specified in an original application and/or any provisional or interim order, and
(b) The additional or alternative orders being sought would, if made, have the effect of increasing or varying (except for lessening) the restrictions imposed upon the defendant,
the applicant must file and serve upon the defendant an amended application specifying the orders sought unless the Court is satisfied it is in the interests of justice not to do so.
4.3 A person serving an amended application must complete a statement of service in accordance with rule 5.12 of the Local Court Rules 2009.
4.4 Before making an order that will have the effect described in paragraph 4.2, the Court must be satisfied that service of the amended application has been effected upon the defendant.
Part 5 Procedure at interim hearing
5.1 The object of this Part is to establish a consistent approach to the manner in which evidence is received at interim hearings. Subject to section 22 of the Act, an interim order may be made by the Court where:
(a) The person for whose protection an order is sought is present and gives evidence orally or by written statement or by a combination of both; or
(b) The person for whose protection an order is sought is absent but a written statement of the person is tendered on his or her behalf by a person authorised to tender such a statement.
5.2 Subject to this Part, the procedure to be followed at a hearing where an interim apprehended violence order is sought (‘interim hearing’) will be determined by the Court.
5.3 Nothing in this Part removes the requirement that the Court be satisfied of the matters set out in section 17 (in the case of an interim ADVO) or section 20 (in the case of an interim APVO) of the Act prior to making an interim order.
5.4 The Court may make an order determining the amount of time that may be taken by each party in the examination, cross-examination or re-examination of a witness who is giving evidence orally at an interim hearing.
5.5 An interim order may not be made unless the person for whose protection an order is sought is present at an interim hearing, unless the Court is satisfied that the person is unable for good reason to be present and the matter requires urgent consideration by the Court.
A Where application brought by police officer and protected person and defendant both absent
5.6 When determining an application for an interim order made by a police officer in the absence of the defendant and the person for whose protection an order is sought, the Court may consider (in addition to the material set out in section 22(4) of the Act):
(a) The grounds set out in an application for an order, including a provisional order granted by an authorised justice; and/or
(b) A written statement taken by a police officer from the person for whose protection an order is sought.
B Where defendant and protected person both present and application contested
5.7 At an interim hearing at which the defendant and the person for whose protection an order is sought are present and the application is contested, unless the Court orders otherwise, an application for an interim apprehended violence order is to be heard and determined on the basis of any one or more of the following:
(a) The written grounds supporting the application;
(b) A written statement from any witness intended to be called at the interim hearing;
(c) Evidence given orally (including in cross-examination) at the interim hearing;
(d) Any submissions made by the parties or their legal representatives.
5.8 Unless the Court orders otherwise, the evidence in chief and cross-examination of a witness at an interim hearing is:
(a) Limited to establishing whether or not it is necessary or appropriate for the Court to make an interim order, and
(b) Not to be directed to establishing whether the making of a final order is warranted.
Part 6 Use of written statements at hearings
6.1 In this Part, ‘hearing’ means a contested hearing at which an application under the Act is heard and determined, but does not include:
(a) an interim hearing; or
(b) the hearing of an application under the Act where concurrent criminal proceedings are in progress against the defendant for an alleged offence arising out of the same facts or circumstances that give rise to the application.
6.2 Unless the Court orders otherwise, a witness’ evidence in chief at a hearing must be given by written statement in accordance with paragraph 6.3.
6.3 Subject to paragraphs 6.2 and 6.4, the Court shall direct a party to serve on each other party a written statement of the oral evidence that the party intends to adduce in chief on any question of fact to be decided at a hearing. Unless the Court orders otherwise, directions for the listing of the matter for hearing shall be made in the form set out at Attachment A.
6.4 Where a police officer is to be called as a witness, the written statement of the officer is not required to be served until the day of the hearing.
6.5 Each written statement must be signed by the intended witness unless the signature of the witness cannot be procured or the Court orders otherwise.
6.6 If the party serving the written statement calls as a witness at the hearing any person whose written statement has been served in accordance with paragraph 6.3 or 6.4:
(a) That person’s written statement is to stand as the whole of his or her evidence in chief, so long as the person testifies to the truth of the written statement, and
(b) Except by leave of the court, the party may not adduce from that person any further evidence in chief.
6.7 Nothing in this Part operates to make admissible any evidence that is otherwise inadmissible or privileged.
6.8 Where it is anticipated a certificate under section 87 of the Civil Procedure Act 2005 will be sought, such application should be made to the Court no later than the mention date when the proceedings are to be fixed for hearing, unless the Court otherwise directs.
6.9 The Court may, if satisfied it is in the interests of justice to do so, dispense with compliance with any or all of this Part.
Part 7 Procedure at final hearing – where no consent to the order and s39 does not apply
7.1 Subject to this Part, the procedure to be followed at a contested hearing where a final AVO is sought and section 39 of the Act does not apply (‘final hearing’) will otherwise be determined by the Court.
A Where defendant present
7.2 Unless the Court orders otherwise pursuant to paragraph 7.3 or 7.4, an application for a final AVO is to be heard and determined on the basis of:
(a) The written grounds supporting the application;
(b) Evidence in chief given by way of written statements that have been served in accordance with any case management orders:
(i) By, or if a person is someone to whom section 16(2) or section 19(2) of the Act applies, on behalf of, the person for whose protection an order is sought,
(ii) If the application is brought by a police officer, that or another officer;
(iii) Of the defendant, and
(iv) Of any other witnesses,
(c) Subject to leave being granted by the Court, any additional evidence of a matter or thing occurring or becoming known to the witness after the making of a written statement;
(d) Any cross-examination evidence or re-examination evidence given orally by a witness at the final hearing; and
(e) Any submissions made by the parties or their legal representatives at the final hearing.
7.3 The Court may order that any or all of a witness’ evidence be given orally.
7.4 Where the witness is a vulnerable person within the meaning of section 306M of the 1986 Act, evidence in chief of a previous representation may be given by way of a recording, in accordance with Division 3 of Part 6 of Chapter 6 of the 1986 Act.
7.5 The Court may, at any time before or during a final hearing, make an order determining the amount of time that may be taken by each party in the examination, cross-examination or re-examination of a witness who is giving evidence orally.
7.6 Written statements of or on behalf of the person for whose protection an order is sought must, to the fullest extent practicable, address all matters required to be considered by the Court in deciding whether or not to make:
(a) A final ADVO, pursuant to sections 16 and 17 of the Act, or
(b) A final APVO, pursuant to section 20 of the Act.
B Where defendant absent
7.7 Proceedings for a final order may be heard and determined by the Court even if the defendant is absent.
7.8 The Court must be satisfied of the matters set out in:
(a) Sections 16 and 17 of the Act, in the case of a final ADVO, or
(b) Section 20 of the Act, in the case of a final APVO.
Part 8 Procedures for protection of children
8.1 In proceedings under the Act where:
(a) A child is required to give evidence pursuant to section 41 of the Act, and
(b) The defendant is not represented by an Australian legal practitioner,
then in addition to any measures for the protection of children specified in the Act, the following procedure shall apply at a hearing of an application:
(c) A child is not to be examined in chief, cross-examined or re-examined by the defendant, but may be so examined instead by a person appointed by the Court who is an Australian legal practitioner or other suitable person.
(d) The person appointed by the Court is to ask the child only the questions that the defendant requests that person to put to the child.
(e) An appointed person must not independently give the defendant legal or other advice.
8.2 Paragraph 8.1 applies whether or not closed-circuit television facilities or other similar technology (or alternative arrangements) are used by the child to give evidence.
8.3 In accordance with section 42, in application proceedings under the Act where any child may be directly or indirectly affected by the making or variation of an AVO:
(a) A person who applies for an order is under a duty to inform the Court of any relevant parenting order (within the meaning of section 42 of the Act) or pending application for a relevant parenting order, and
(b) Prior to making or varying an AVO, the Court shall remind of the person of the duty set out in paragraph 8.3(a) and have regard to the matters set out in section 42(2) and (3) of the Act.
Part 9 Applications for variation or revocation of orders where contested
9.1 Subject to section 73(3) of the Act, unless the Court orders otherwise pursuant to paragraph 9.2 an application for variation or revocation of orders which is contested is to be heard and determined on the basis of:
(a) Evidence in chief given by way of written statements:
(i) Of the protected person,
(ii) Of the defendant, and
(iii) Of any other witnesses,
that have been served in accordance with any case management orders;
(b) Subject to leave being granted by the Court, evidence in chief given orally by a witness at the final hearing that relates to a matter or thing occurring or becoming known to the witness after the making of a written statement,
(c) Any cross-examination evidence or re-examination evidence given orally by a witness at the hearing, and
(d) Any submissions made by the parties or their legal representatives at the hearing.
9.2 The Court may order that any or all of a witness’ evidence be given orally.
Part 10 Applications for revocation of expired AVO
Where an application is made to revoke an expired AVO, in addition to the requirements of section 72(8) of the Act, the Court requires a copy of the application setting out the grounds relied to be served on the protected person and the Commissioner of Police.
Part 11 Applications for annulment of orders
For the purposes of section 6(1) of the Crimes (Appeal and Review) Act 2001, the Court requires the following “interested parties” to be informed of an application for annulment of an AVO:
(a) Where the application is made by a defendant:
(i) The protected person, and
(ii) If the application for an AVO was brought by a police officer, the officer in charge of the police station from which the application was made.
(b) Where the application is made by a protected person:
(i) The defendant; and
(ii) If the application for an AVO was brought by a police officer, the officer in charge of the police station from which the application was made.
Judge Graeme Henson
Chief Magistrate
Timetable for Statements
(Practice Note 2 of 2012)
Applicant’s evidence
1. The Applicant is to serve on the Defendant a copy of:
• The Applicant’s own written statement, and
• Any written statement/s of witness/es from whom the Applicant intends to call evidence at hearing on or before: f (approximately 2 weeks).
2. In proceedings where the Defendant is unrepresented, the statements may be placed with the registry for collection by the Defendant.
Defendant’s evidence
3. Subject to any claim under s 87 of the Civil Procedure Act 2005, the Defendant is to serve on the Applicant a copy of:
• The Defendant’s own written statement, and
• Any written statement/s of witness/es from whom the Defendant intends to call evidence at hearing on or before: (approximately 4 weeks).
4. In proceedings where the Applicant is unrepresented, the statements may be placed with the registry for collection by the Applicant.
Mention
5. The matter is next listed on: (approximately 5 weeks) (‘the mention date’) to review compliance with this timetable and, if ready, to list the matter for hearing.
6. Unless the Court otherwise orders, and subject to the interests of justice, on the mention date:
• If the Applicant has failed to comply with these directions and does not appear at Court, the application may be struck out.
• If the Defendant has failed to comply with these directions and does not appear at Court, an Apprehended Violence Order may be made.
It is important to comply with the above timetable. If statements are not exchanged prior to the hearing date, it will be necessary to seek leave of the Court to give oral evidence.
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