In the last issue of Family Law, we mentioned that when the relationship between the two parties in the marriage breaks down and competes for the custody of the child, "the best interests of the child" is the primary consideration of the court when deciding the ownership of custody. And if one parent has child abuse or domestic violence, it will also affect the court's decision on the right of ownership.

In addition, Australia has a severe crackdown on domestic violence. According to SBS NEWS, in 2023, Australia's new state police launched a crackdown on domestic violence, arresting nearly 600 people with domestic violence in four days. In addition to the post-incident crackdown on domestic violence, Australian law also has provisions to prevent domestic violence-the Apprehended Violence Order (hereinafter referred to as "AVO"). In this issue, we will combine the laws and regulations of New South Wales (hereinafter referred to as New South Wales) on violence prohibition orders to explain to you the defensive "weapons" that can be used in the event of domestic violence ".

What is ADVO]

AVO in Australian law refers to an "injunction" made by an Australian court to protect the victim from threats, intimidation, harassment, stalking and other violent threats ". There are generally two types of AVO: the Apprehended Domestic Violence Order (hereinafter referred to as "ADVO") and the Apprehended Personal Violence Order (hereinafter referred to as "APVO"). The two prohibitions are literally similar in name, but they are fundamentally different.

According to the provisions of the New State Crime (Domestic Violence and Personal Violence) Act of 2007 (CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007, hereinafter referred to as "CDPVACT"), ADVO is only applicable to domestic violence between members of the family, such as husband and wife/de facto partners, couples, siblings and relatives. APVO applies to domestic violence occurring outside members of the family, such as neighbors and colleagues.

At the same time, CDPVACT S5(1) also clearly stipulates the "scope of family members". In addition to the above-mentioned personnel, it also includes:

1. A person who has lived or has lived for a long time in the same residence with another person;

2. A person who is or has been dependent on others for continued provision of paid or unpaid care;

3. In the case of Aboriginal or Torres Strait Islander people, persons who are or have been relatives of the Aboriginal kinship system in their culture.

In addition, CDPVACT S5(2) extends the scope of "family members" to: if two people have family relations with the same person, then the two people also have family relations, such as a woman's ex-husband and current husband are both family members even if they have never met.

5 Meaning of “domestic relationship”

(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.

In the new state, the main type of AVO made by the court is ADVO, so this paper mainly focuses on ADVO.

How to Apply for ADVO]

According to CDPVACT S48(2), only the following persons can apply to the court for ADVO:

Persons in need of protection (potential victims);

2. Need the guardian of the protected person;

3. The police.

But normally, the ADVO application is made to the court by the police. Because the victims of domestic violence, most will choose to report to the police. Upon receiving a report from the victim, the police may issue a "temporary ADVO" (Provisional ADVO) to the victim in accordance with CDPVACT S26 if they believe that the victim needs protection. After that, the police will apply to the court for a formal ADVO within 28 days to obtain a final injunction.

And according to the relevant provisions of the New South Wales Police Code of Conduct on Domestic Violence, if the police refuse to issue ADVO for the victim, the victim has the right to request the police to issue a written document to explain the reasons for refusing to apply for him. Therefore, in general, seeking protection from the police is one of the best options for victims.

After the victim or the police apply to the court for ADVO, according to the provisions of CDPVACT S16 and S17, the court will consider whether to approve ADVO from the following aspects:

1. The victim has reasonable grounds to believe that the perpetrator will commit an act of violence against him or her, or in concert with another person;

2. The victim has a de facto fear that the perpetrator will commit an act of violence against him or her, or in concert with others;

3. The safety of protected persons and children who are directly or indirectly affected by the perpetrators of the violence;

4. If the prohibition relates to the prohibition or restriction of access to the abuser's residence, the impact on the safety of the protected person and the children who regularly reside in the residence if the prohibition is not made;

5. If the prohibition is not made, the adverse effects on the protected person and his or her children;

6. Housing needs of protected persons and their children, etc.

In addition, if the defendant is present or the defendant has received notice of the proceedings, the court may also make a "temporary ADVO" (Interim Court Order) before the formal hearing. According to CPDVACT S40, the court must make a "temporary ADVO" to protect the victim if the perpetrator has the following serious crimes (Serious Offence):

(I) attempted murder;

2. Domestic violence crimes;

3. Offences under the following provisions of the Crimes Act 1900:

S33, S35, S61J, S61JA, S61K, S61KC, S61KD, S61L, S61M, S65, S66A, S66B, etc;

4. Attempting to commit a crime of murder or domestic violence;

5. Acts of intimidation or stalking under ADVOACT S13.

In addition, when the court makes an ADVO, it will attach a "mandatory injunction" (Mandatory Conditions) to protect the victim. In accordance with CDPVACT S36, the ADVO must prohibit:

1. The perpetrator attacks or threatens the victim or a person related to the victim's family;

2. The perpetrator follows, harasses or intimidates the victim or a person related to the victim's family;

3. The perpetrator damages or injures the property or animals of the victim or of a person related to his or her family.

36 Prohibitions taken to be specified in every apprehended violence order

Every apprehended violence order is taken to specify that the defendant is prohibited

from doing any of the following—

(a) assaulting or threatening the protected person or a person with whom the protected

person has a domestic relationship,

(b) stalking, harassing or intimidating the protected person or a person with whom the

protected person has a domestic relationship,

(c) intentionally or recklessly destroying or damaging any property, or harming an animal,

that belongs to, or is in the possession of, the protected person or a person with whom

the protected person has a domestic relationship.

Although the above acts are illegal regardless of the existence of ADVO, if the perpetrator commits the above acts, he will not only be charged with a criminal offence, but also be charged with violating ADVO. This will increase the penalties for perpetrators.

In addition, the court will attach other necessary injunctions to ensure the safety of the victim, such:

1. Prohibit the perpetrator from living with the victim;

2. Prohibit the perpetrator from contacting or attempting to contact the victim;

3. Prohibit the perpetrator from entering a certain area of the victim's place of residence or work.

As for the validity period of the ADVO, in general, when the court makes the ADVO, it will list the validity period of the ADVO, and if the court does not list it, according to the provisions of CDPVACT S79A, the ADVO will continue to be effective for 2 years from the date of issue. However, if it is made for minors and no expiration date is specified, the ADVO is valid for one year. However, the temporary ADVO mentioned above will remain in effect until the court makes a final ADVO.

79A Duration of apprehended domestic violence orders

(1) Appressed domestic violence order remains in force for-

(a) the period specified in the order by the court, or

(b) if the court fails to specify a period in the order, the default period.

……

(6)default period means-

(a) if the order relates to a defendant who was under 18 years of age when the application for the order was first made—1 year after the date the order is made, or

(b) in any other case—2 years after the date the order is made.

Consequences of violation of ADVO]

When the court makes an ADVO, it will attach a certain injunction to it. If the abuser violates the relevant injunction, he will be charged with a criminal offence. According to the provisions of CPDVACT S14(1), if the perpetrator intentionally violates the ADVO prohibition, the act is a crime and is punishable by up to 2 years in prison, or a fine of 5500 Australian dollars, or both.

14 Offence of contravening apprehended violence order

(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.

Maximum penalty—Imprisonment for 2 years or 50 penalty units, or both.

But in fact, ADVO is only a civil injunction, and the person who is made ADVO by the court will not form a criminal record. However, if the perpetrator is engaged in work related to children, under the relevant provisions of the Child Protection (Work Related to Children) Act 2012, the perpetrator's subsequent work may be affected.

In practice, there will be cases where the victim actively contacts the perpetrator. In this case, would the abuser be considered to be in violation of the ADVO.

In the case of R v Fam [2023] NSWDC 119, the perpetrator Fam and the victim r were given ADVO up to 2021 due to domestic violence in a relationship. However, after the court made ADVO to both parties, the perpetrator Fam and the victim R still kept in touch, and they still lived in different apartments in the same area for a period of time. In 2021, the victim R voluntarily sent a message to the perpetrator Fam asking for the two to meet. In the process of meeting and contacting the two, the perpetrator Fam beat R again. After that, both parties went to court. Here, the assaulter's beating is undoubtedly a violation of ADVO, but the judge also wrote in the ruling reasons that the contact between the perpetrator and the victim, including the victim's active contact with the perpetrator, is a violation of ADVO.

In addition, there are two offences on a s 166 certificate which are uncontested breaches of Apprehended Domestic Violence Orders which relate to the offender's contact with and violence upon the victim on, firstly, 10 to 11 April 2021 and, secondly, 13 to 14 April 2021 being the dates of the commission of the offences in count 2 and count 6 respectively.

In summary, victims of domestic violence in Australia can seek protection from a domestic violence restraining order. The primary consideration of the Australian New State Court in approving the ADVO is the violence committed by the perpetrator against the victim. Therefore, if the victim has been subjected to serious violence, the following measures can be taken:

Report to the police for temporary ADVO protection, and then the police apply to the court for formal ADVO. The police have the power to detain the perpetrator and force him to leave the scene of the violence. The police will also help the victim to obtain judicial assistance and provide various guidance, such as informing the victim that he should see a doctor in time to check the injury and keep the doctor's report as future evidence, informing the victim that he has the right to apply for a restraining order in the court on his own, informing the victim that he can provide temporary residence, medical assistance, legal assistance and psychological assistance and their contact information, etc. If a child is involved in an incident of domestic violence, the police will send the child to a family or youth service so that the child can stay away from domestic violence until his or her parents are certified to have qualified guardianship.

-Collect evidence and apply to the court for ADVO protection. As long as the evidence is sufficient, the court will issue a restraining order to the perpetrator (or potential perpetrator), prohibiting him from approaching the victim for a certain period of time, such as not entering the victim's home, not following the victim, not threatening the victim, not carrying weapons, etc. (Note: The ADVO issued by the court is only a civil injunction, and the relevant personnel will not leave a criminal record. However, if the injunction attached to the ADVO is violated, even if the victim actively contacts the abuser, it will be regarded as the abuser's violation of the ADVO and will be considered a criminal offence and punished)

Finally, domestic violence is not a simple family matter or trivial matter as the traditional concept believes, but a social problem that seriously endangers marriage and family relations and the stability of social order. it is related to the protection of citizens' human rights, harmonious family relations, gender equality between men and women, and the progress of national civilization. Therefore, when encountering domestic violence, you should bravely use legal weapons to protect yourself and boldly say "no" to domestic violence "!

Note: The content of the above article is for reference only and does not constitute legal advice. If you have any legal questions, please consult with Huixiang Sydney lawyer in detail.