DV

Question 1

“Domestic Relationship” is defined in Section 5 of the Act. What is a Domestic Relationship?

Answer 1

(a) Is or has been married to the other person, or
(b) is or has been a de facto partner of that other person, or
(c) has or has had an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, or
(d) is living or has lived in the same household as the other person, or
(e) is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person (not being a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 or a detention centre within the meaning of the Children (Detention Centres) Act 1987), or
(f) has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person (subject to section 5A), or
(g) is or has been a relative of the other person, or
(h) in the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person’s culture.

(2) (2) Two persons also have a domestic relationship with each other for the purposes of this Act if they have both had a domestic relationship of a kind set out in subsection (1) (a), (b) or (c) with the same person.

Note: a woman’s ex-partner and current partner would therefore have a domestic relationship with each other for the purposes of this Act even if they had never met.

Note: There are 9: married/defacto/intimate personal relationship/same household/long term resident of same residential facility/paid or unpaid carer/relative/Aboriginal kinship/new partner of ex partner.

Question 2

What is the definition of a relative? Cite Section where the definition is found.

Answer 2

Found in Section 6 of the Act.

A person is a relative of another person, if the relative is:

(6) (a)
(i) includes a father, mother, grandfather, grandmother, stepfather, stepmother, father in-law and mother in-law;
(ii) son, daughter, grandson, granddaughter, stepson, stepdaughter, son in-law, daughter in-law;
(iii) brother, sister, half brother, half sister, step brother, step sister, brother in-law, sister in-law;
(iv) uncle, aunt, uncle in-law, aunty in-law
(v) nephew, niece
(vi) cousin; OR

(6) (b) where the person is a defacto of the other person:
(i) father, mother, grandfather, grandmother, stepfather, stepmother;
(ii) son, daughter, grandson, granddaughter, stepson, stepdaughter,
(ii) brother, sister, half brother, half sister, step brother, step sister;
(iii) aunty or uncle;
(iv) nephew or niece;
(v) cousin; of the person’s partner.

Question 3

In which circumstances must police make an application for an order (non-urgent) AVO?

Answer 3

(1) ​(a) a domestic violence offence or an offence against section 13 has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made, or
(b) an offence under section 227 (Child and young person abuse) of the Children and Young Persons (Care and Protection) Act 1998 (but only in relation to a child) has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made, or
(c) proceedings have been commenced against a person for an offence referred to in paragraph (a) or (b) against the person for whose protection an order would be made.
(2) The application may be made by any police officer.
(3) An application need not be made in the circumstances referred to in subsection (1) if an apprehended violence order is already in force for the protection of the person concerned or if an application has been made for a provisional order for the protection of the person.

(4) An application need not be made in the circumstances referred to in subsection (1) if the person for whose protection an apprehended violence order would be made is at least 16 years of age at the time and the police officer investigating the matter believes:
(a) that the person intends to make the application, or
(b) that there is good reason not to make the application.

(5) However, if the police officer investigating the matter believes that there is good reason not to make the application, the police officer must make a written record of the reason.

(6) For the purposes of subsection (4), the reluctance of the person to make an application does not, on its own, constitute a good reason for a police officer not to make an application if the police officer reasonably believes that:
(a) the person has been the victim of violence or there is a significant threat of violence to the person, or
(b) the person has an intellectual disability and has no guardian.

Question 4

What is the test the Court must apply before granting a Final Order? Cite the Section

Answer 4

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.

Question 5

Under what circumstances MUST Police apply for a Provisional Order? Cite the Section.

Answer 5

Section 27 of the Act.

27: Obligation to apply for provisional order in certain circumstances
(1) An application must be made for a provisional order if:
(a) a police officer investigating the incident concerned suspects or believes that:
(i) a domestic violence offence or an offence against section 13 has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made, or

(ii) an offence under section 227 (Child and young person abuse) of the Children and Young Persons (Care and Protection) Act 1998 (but only in relation to a child) has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made, or
(iii) proceedings have been commenced against a person for an offence referred to in subparagraph (i) or (ii) committed against the person for whose protection an order would be made, and
(b) the police officer has good reason to believe an order needs to be made immediately to ensure the safety and protection of the person who would be protected by the order or to prevent substantial damage to any property of that person.
(2) The application may be made by any police officer.
(3) An application need not be made in the circumstances referred to in subsection (1) if an apprehended violence order is already in force against the defendant for the protection of the person concerned.
(4) An application need not be made in the circumstances referred to in subsection (1) if the person for whose protection an order would be made is at least 16 years of age at the time of the incident and a police officer investigating the incident believes:
(a) that the person intends to make an application for an apprehended violence order, or
(b) that there is good reason not to make the application.
(5) However, if the police officer investigating the incident believes that there is good reason not to make the application, the police officer must make a written record of the reason.
(6) For the purposes of subsection (4), the reluctance of the person to make an application does not, on its own, constitute a good reason for a police officer not to make an application if the police officer reasonably believes that:
(a) the person has been the victim of violence or there is a significant threat of violence to the person, or
(b) the person has an intellectual disability and has no guardian.

Question 6

Which sections of the Act deal with Applications to Vary or Revoke Final AVOs?

Answer 6

Sections 72A-72D

Question 7

Who can make an application to vary an order?

Section 72A

Answer 7

72A Making of application to vary or revoke

(1) An application may be made to a court at any time.
(2) An application may be made only by a police officer or by an interested party in relation to the order.
(3) An application must set out the grounds on which the application is made and, in the case of a variation, the nature of the variation sought. This subsection does not limit the powers of the court.

** Note: an “Interested Party” in (2) can be the PINOP or the Defendant

Question 8

If a protected person is a child, who can make an application to vary the order?

Section 72B

Answer 8

72B Making of application—police-initiated order where protected person is child

(1) An interested party in relation to a police-initiated order requires leave of a court to make an application to the court in respect of the order if the protected person (or one of the protected persons) under the order is a child.
(2) The court may grant leave for the interested party to make the application if the court is satisfied of any one or more of the following:
(a) that there has been a significant change in circumstances since the order was made (or was last varied),
(b) that the application is proposed to be made by the Secretary of the Department of Family and Community Services on the basis that a care plan (within the meaning of the Children and Young Persons (Care and Protection) Act 1998) for the child is inconsistent with the police-initiated order,
(c) that it is otherwise in the interests of justice to do so.
(3) The court is not to grant leave if it is of the opinion that the application, if successful, would significantly increase the risk of harm to the child.

Question 9

Scenario Question:

A Police Officer applies for and takes out a Provisional Order which is served on the Defendant. On the first court date there is no appearance of the Defendant. The Magistrate decides to adjourn the Court date and on the second Court date, the Accused again does not appear before the Courts and therefore the Magistrate grants the Final Order in the absence of the Accused. The Accused is then alleged to have breached the order the day after the granting of the Final Order. Police at this stage have been unable to serve the Final Order.

What application has the Accused breached and why? Cite the Section that applies to the Duration of Orders.

Answer 9

The Accused has breached the original Provisional Order, which is the order that is enforceable at the time of the alleged breach. Section 32 of the Act states that: A provisional order remains in force until:

(a) it is revoked, or
(b) it ceases to have effect under subsection (2), or
(c) the application for a final apprehended violence order is withdrawn or dismissed, whichever first occurs.

(2) If an interim court order or final apprehended violence order is made in respect of a provisional order (whether with or without variation), the provisional order ceases to have effect:
(a) in a case where the defendant is present at court—when the interim court order or final apprehended violence order is made, or
(b) in any other case—when the defendant is served in accordance with this Act with a copy of the interim court order or final apprehended violence order.

Question 10

Scenario Question:

You are in Court and there is a personal charged with Malicious Damage. You look at the papers and notice that the Accused is the uncle of the Victim and there is no application before the Court. What would you do?

Cite the Section(s) you rely on

Answer 10

As per Section 11 of the C(D&PV)Act, the matter is defined as a Domestic Violence Offence because the persons are in a domestic relationship (Relatives under Section 6) and there is a personal violence offence, being the malicious damage.

In this scenario, the Police officer should have made an application under either Section 27 or 49 as the legislation states that they must, however, if the application has not been made, the Court may make that Interim Order (under Section 40) whether or not there is an application before it.

Question 11

What are the proofs of Contravene ADVO and Cite the Section.

Answer 11

Section 14 of the Crimes (Domestic and Personal Violence) Act is the Section where you would find the offence of contravening an apprehended violence order.

Section 14 (1) a person who KNOWINGLY contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence.

Question 12

In what circumstances wouldn’t Police make an application for a an Apprehended Violence Order (non urgent)? Cite the Section.

Answer 12

You would find this in Section 49 Subsection (3), where it states that:

“An application need not be made in the circumstances referred to in subsection (1) if an apprehended violence order is already in force for the protection of the person concerned or if an application has been made for a provisional order for the protection of the person”.

and

(4) An application need not be made in the circumstances referred to in ss1 if the person is at least 16 and the police officer believes that the person intends to make an application themselves or that there is good reason not to make the application.

** (5) the Police must make a written record of their reasons for NOT applying for the order. (6) the reluctance of the person does not constitute a good reason not to make an application if the Police believe the person has been a victim of violence or has an intellectual disability.

Question 13

When may a Court make an Interim AVO? Cite the section.

Answer 13

Section 22. “a court may, on application, make an interim apprehended violence order if it appears to the court that it is necessary or appropriate to do so in the circumstances.

Question 14

What is Section 40 of the Crimes (Domestic and Personal Violence) Act?

Answer 14

Section 40 of the Act provides that an Interim Order MUST be made on charge of certain offences (serious offences). When a person is charged with a serious offence, the court must make an Interim AVO against the Defendant for the protection of the PINOP whether or not an application for an order has been made.

Question 15

What does Section 31 of the Crimes (D&PV) Act relate to?

Answer 15

Service of a provisional order.

Question 16

How must a Provisional Order be served?

Answer 16

Section 31 states:

(1) A provisional order is to be served personally on the defendant by a police officer as soon as practicable after it is made.
(2) A provisional order is to be served personally on the protected person by a police officer as soon as practicable after it is made unless it is impractical to do so.

Question 17

When MUST a court make a Final Order? Cite Section

Answer 17

Section 39 states that a Court MUST make a Final Order on a finding of guilt for a “serious offence” which includes a domestic violence offence and or offences under s13 (stalk/intimidate) (which can be both personal violence or domestic violence related).

Question 18

What are the proofs of Stalk/Intimidate and Cite the Section.

Answer 18

Section 13 of the Crimes (Domestic and Personal Violence) Act is the Section where you would find Stalking or Intimidation

(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.

Proofs: The prosecution must prove beyond a reasonable doubt that the accused

(1) Stalked or intimidated the complainant
(2) With the intention of causing the complainant to fear physical or mental harm

Question 19

When will a Court vary a Final or Interim AVO and cite the section that gives the Court the power to do so.

Answer 19

Section 73 of the Act.

73. Variation or revocation of final apprehended violence orders and interim court orders
    (1) The court may, if satisfied that in all the circumstances it is proper to do so, vary or revoke a final apprehended violence order or interim court order.
    (2) In particular, a final apprehended violence order or interim court order may be varied under this section in any one or more of the following ways:
    (a) by extending or reducing the period during which the order is to remain in force,
    (b) by amending or deleting any prohibitions or restrictions specified in the order,
    (c) by specifying additional prohibitions or restrictions in the order.
    (3) The court may decline to hear an application in respect of an order if the court is satisfied that there has been no change in the circumstances on which the making of the order was based and that the application is in the nature of an appeal against the order.
    (4) A final apprehended violence order or interim court order is not to be varied or revoked on the application of the defendant unless notice of the application has been served on each protected person to whom the order relates.
    (5) A final apprehended violence order or interim court order is not to be varied or revoked on the application of the applicant for the original order or protected person unless notice of the application has been served on the defendant.
    (6) Notice of an application must be served personally or in such other manner as the court hearing the application directs.
    (7) Despite subsection (5), the court may make an order extending the period during which the final apprehended violence order or interim court order is to remain in force without notice of the relevant application having been served on the defendant, if the applicant lodged the application before the day on which the apprehended violence order or interim court order is due to expire.
    (8) If an application for the extension of a final apprehended violence order or interim court order is made before the order expires, the order is taken to continue in force until the application is dealt with by the court.
    (9) Unless sooner revoked, an order extended under subsection (7) ceases to have effect 21 days after the order extending it is made or on an earlier date specified in the order extending it. However, further orders may be made from time to time under that subsection before the extended order ceases to have effect.

Question 20

What is the definition of a DV offence? Cite Section(s).

Answer 20

Section 11 of the Crimes (Domestic & Personal Violence) Act defines a domestic violence offence as being an offence committed by a person against another person with whom the person who commits the offence has (or has had) a domestic relationship, being:

(a)a personal violence offence.

Section 4 of the Act defines a Personal Violence Offence;
And
Section 5 of the Act defines a Domestic Relationship.

Domestic Violence Offence (s11)=
Personal Violence Offence(s4)+Domestic Relationship (s5)

Question 21

In a previous flash card, Sections 27 and 49 were dealt with, which are the circumstances in which Police MUST apply for an order. Key words were used. What are they?

Answer 21

A Police Officer MUST make an application for an order (49) or must apply for a Provisional order (27) if they:

*Suspect
or
* Believe

that a dv offence or a stalking/intimidation offence or an offence against a child under s227 of the Children and Young Persons (Care and Protection) Act

• has recently been committed
• is being committed

Or

*is imminent

Or

• is likely to be committed

Against the person for whose protection the order would be made.

Question 22

Describe in which circumstances Police WOULDN’T apply for a Provisional order. Cite the Section and subsection.

Answer 22

Section 27(3)

27(3) An application need not be made in the circumstances referred to in subsection (1) if an apprehended violence order is already in force against the defendant for the protection of the person concerned.

AND

(4) An application need not be made in the circumstances referred to in subsection (1) if the person for whose protection an order would be made is at least 16 years of age at the time of the incident and a police officer investigating the incident believes:
(a) that the person intends to make an application for an apprehended violence order, or
(b) that there is good reason not to make the application.
(5) However, if the police officer investigating the incident believes that there is good reason not to make the application, the police officer must make a written record of the reason.

Question 23

Can a Registrar make an Interim Order?

Answer 23

Only by consent. (Section 23).

Question 24

Section 22 deals with the making of Interim Orders by the Court. What is does the Court need to be satisfied of in order to make an interim order?

Answer 24

The Court needs to believe that it is necessary or appropriate to do so in the circumstances.

Question 25

Section 16 deals with the “test” the Court applies before making an order. What is the test?

Answer 25

A Court may make an ADVO or APVO if satisfied on the balance of probabilities that the PINOP has reasonable grounds to fear (objective test) AND in fact fears (subjective test) the commission of a DV offence.

Question 26

If an “interested party” (PINOP/Defendant) makes an application to the Court to vary or revoke a police initiated AVO, police MUST be made aware of that application before it can progress through the Court. Cite the Section and Subsection that applies.

Answer 26

72C Commissioner must be notified if application relates to police-initiated order

(1) The court must decline to hear an application in respect of a police-initiated order unless:
(a) the application is made by a police officer, or
(b) the court is satisfied that notice of the application has been served on the Commissioner of Police in accordance with the rules of the court.
(2) The Commissioner of Police has standing to appear in proceedings for the variation or revocation of any police-initiated order.

72D Notification of application if protected person is child

The court may notify an application to the Commissioner of Police and any interested party and give the Commissioner and interested party standing to appear in proceedings if the protected person (or one of the protected persons) under the order is a child at the time of the application and the court considers it to be in the best interests of the child to do so.

Question 27

When are a PINOP’s fears not required?

Answer 27

• If the PINOP is under 16 (ADVO and APVO)
• if the PINOP is (in the opinion of the court) of appreciably below average intelligence (ADVO and APVO)
• in the opinion of the Court (ADVO only)
  * the PINOP has been subjected on more than one occasion to personal violence by the defendant; AND
  * there is a reasonable likelihood that the Defendant may commit a personal violence offence against the PINOP; AND
  * the making of an order is necessary in the circumstances to protect the PINOP from further violence.

Question 28

Can an expired AVO be revoked?

Answer 28

NO.

Question 29

Can AVOs have bail conditions?

Answer 29

Yes. Section 83 of the Crimes (D&PV)Act applies to the application of Bail Act.

If an application for a final apprehended violence order or interim court order is made, the Bail Act 2013 applies to the defendant as if:

(a) where the defendant is arrested pursuant to a warrant issued under this Act or first appears before a court in answer to a direction to appear given under this Act—the defendant were an accused person charged with an offence, and
(b) proceedings in respect of the application or order were proceedings in respect of an offence for which there is a right to release under Part 3 of the Bail Act 2013.

Question 30

Is there an offence for contravening an Ancilliary Property Recovery Order?

Answer 30

Yes.

Section 37(3) of the Act:

(6) A person must not, without reasonable excuse, contravene a property recovery order or obstruct a person who is attempting to comply with a property recovery order.
Maximum penalty: 50 penalty units.

Question 31

Should undertakings be accepted instead of AVOs?

Answer 31

NEVER!!!

Question 32

Scenario Question:

Melissa is in Kiama to collect her son after he has spent a weekend with his father. Melissa approaches the car to collect her son, who is in the car with his Dad. Also in the car with her son is his stepmother (His Dad’s now wife) and a little girl (her son’s baby sister). As Melissa arrives at the car, she says hello to the little girl. The mother of the little girl (the wife of Melissa’s ex-partner) approaches her, grabs her shirt, pushes her and says “don’t you speak to my daughter, she’s not your family. She hates you”. Is this a domestic violence offence?

Answer 32

Yes.

Section 5(2) of the Act states that two persons also have a domestic relationship with each other if they have both had a domestic relationship with the same person.

Question 33

What is the Duration of a Provisional Order? Cite Section.

Answer 33

Section 32. A provisional order remains in force until:

(a) it is revoked;
(b) ceases to have effect (ie: Interim or Final made and served); or
(c) an application for a Final Order is withdrawn or dismissed.

Question 34

Who can vary a Provisional Order? Cite Section.

Answer 34

Section 33.

A provisional order may be varied by:

• an authorised officer who made it
• court; or
• the Defendant

If there is a child on the order only Police can apply for a variation of a provisional order.

Question 35

In an earlier slide, Section 16 of the Act (being the test the Court applies to the decision to make an order) was discussed. (Reasonable grounds to fear and in fact fears).. despite this, 16(2) provides that the court does not need to find that the PINOP “in fact fears” part in certain circumstances. What are those circumstances?

Answer 35

16(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 mandatory conditions.

Question 36

Scenario Question:

Georgia and Heath are in a domestic relationship. Georgia pushes Heath one day and Police apply for an AVO which Georgia doesn’t contest and it is made final. 2 months before the AVO is due to expire, Georgia sends Heath a message telling him she is going to kill him. Police charge Georgia with contravening the AVO and Intimidation. Georgia pleads not guilty and it is set down for a hearing in 3 months time. In between time, the original AVO is due to expire but the charging Police didn’t think to apply for a new AVO. Can you, as a prosecutor do anything? Cite section.

Answer 36

Yes.

Despite the original order “expiring” as the order had been contravened and there was a charge before the Court, the Final Order was taken to be extended past the date of expiry until the completion of the charge matter. Under Section 75 of the Act the prosecutor can make a verbal application to vary an order (in this case varying the “expired” order) by increasing the duration of the order.

75 Variation may be made on guilty plea or guilt finding for certain offences

(1) If a person pleads guilty to, or is found guilty of, a serious offence, the court may vary a final apprehended violence order or an interim court order for the purpose of providing greater protection for the person against whom the offence was committed whether or not an application to vary the order has been made under this Division.

Question 37

For AVOs, where there is no charge attached, are you able to use DVEC?

Answer 37

No. DVEC can only be used when there is a charge for a domestic violence offence.

Question 38

What does the Local Court Practice Note 2 of 2012 contain?

Answer 38

The procedures for AVO matters.

Where a standalone AVO (without charge attached) is contested, the Practice Note sets out instructions for both parties to file and serve written statements upon which they will rely on as their evidence in chief that can be tendered for hearing. Police statements not required to be served until the day of hearing.

Question 39

What is an APRO?

Answer 39

Ancilliary Property Recover Order

Question 40

Who can apply for an APRO?

Answer 40

Defendant, PINOP or Police. S37(1)(B)

Question 41

In a Breach AVO hearing, evidence must be called to prove that an AVO was served. Does the Statement of Service have to be signed?

Answer 41

No.
Local Court Rules 5.12 states:

(5) “In the case of a document served by a police officer or a public officer, the statement is not required to be signed”.

Question 42

What are some of the statutory defences for contravening an AVO?

Answer 42

Proving “knowingly”. Proving “service”.

A person is not guilty of an offence under Section 14 unless he/she was served with a copy of the AVO/IO/PO or if the Deft was present in Court when the order was made.

The person cannot be guilty of contravening an order if it was done in compliance with the terms of a property recovery order or if it was necessary to attend mediation (under s21 - personal violence).

Question 43

Under which Section of the Crimes (D&PV) Act would you find the offence of Stalk/Intimdate? What are the proofs?

Answer 43

Section 13

(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.
(2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.
(3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.
(4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.
(5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.