Research from the 2012 ABS Personal Safety Survey and Australian Institute of Criminology found that between one in three and one in four men are victims of domestic violence. The NSW Bureau of Crime Statistics and Research found in 2004 that one in three was an approximate figure for male victims of domestic assault, and 2014 statistics from the NSW Bureau of Crime Statistic and Research confirmed these findings. It is suggested that male and female victims report a similar number and type of injuries, and men were more likely than women to not report the matter to police about experiencing current or previous partner violence. According to this data, 94 per cent of perpetrators against male victims of partner violence are women.
Behaviours assessed included: isolating behaviours; social media shaming; being induced to physical or emotional exhaustion; mind games and manipulation; physical violence in the form of pushing, slapping, choking or kicking; stalking or forced sexual contact or coercion; threats; belittling; and verbal shaming.
In instances of domestic violence, an avenue for protection under the law is an Apprehended Violence Order (AVO) or Apprehended Domestic Violence Order (ADVO). These will be discussed below.
An Apprehended Violence Order (AVO) is a written order by the Local Court that works to restrict a violent person from certain actions. The order restricts the accused in terms of behaviour and movement. The accused is the person who is causing the victim to fear for their safety. This order can also cover other people, such as the children of the person in need of protection, if they live together and are named as protected people on the order. It is important to note that this is not a criminal charge, as an order is to be viewed as more of a preventative measure than a form of punishment. Criminal charges arise where the conditions of the order are breached and can be proven. This breach will appear on the accused’s criminal record.
An Apprehended Domestic Violence Order (ADVO) is a type of AVO issued when the violent incidents occur within an intimate relationship (de-facto, married, LGBTIQ), extend from a family relationship, or the two parties live in the same home. The relationship may be past or present, and also extends to a situation where there is a care scenario involved, whether this is paid or unpaid. Orders may also be taken out in the situation where the children are the offenders.
Conditions that may arise under an AVO can be classified as mandatory orders or additional orders. Mandatory orders concern specific behaviours and actions, such as: assault; molest; threaten; harass; stalk or intimidate. Additional orders can also be included in the order regarding issues such as: approaching or entering the victim’s place of work or residence; damaging the victim’s property; contacting the victim apart from through legal representation, such as a solicitor; or living with the victim.
To apply for an AVO, there are two main options: the police can apply for an ADVO on behalf of the victim, or the victim can apply directly to the Local Court. Police applications can be made after the police have attended to an incident of domestic violence or if the victim reports an incident of domestic violence at a police station. The police then make an application to the Local Court on the victim’s behalf, and both the victim and the accused receive a copy of the application once it is completed. Both parties have to attend court for the finalisation of the order. If the victim chooses to seek assistance directly from the Local Court, it is arranged by the Court that police will serve the accused the application copy. Both parties are still required to attend court.
Information required by the police includes details of the incidents that necessitate the order, as well as any medical evidence and personal information about the relationship.
Provisional ADVO orders may be made if necessary by a police officer with requisite authority, and typically arise when there has been a domestic violence incident. An ADVO is for a set period of time, and this is significant as the time period can vary depending on the type of order made. The general length can vary between six months and two years, but this is determined on a case by case basis.
The order for an ADVO can be withdrawn, but it is important to note that this depends on whether the police reported the incident to the Local Court or the victim sought out the Local Court themselves. If it was a private reporting, that is, without the interference of the police, the application can be withdrawn but reasons may need to be given.
If the police made the order, then in some instances, such as where there are children listed, only the police may be able to withdraw it. If police take a statement of no complaint, this does not preclude the police from pursuing criminal charges. Witnesses may be used in court proceedings in the evidence process, and a witness can be anyone who can provide evidence to assist in the prosecution of an offender. In instances where the victim fails to appear in proceedings, there is the possibility that police may seek a warrant for the arrest of an alleged domestic violence victim. However, this will only occur in exceptional circumstances.
The Australian Law Reform Commission’s publication ‘Family Violence – A National Legal Response (ALRC Report 114)’ states that although the protection orders outlined above ‘are a civil remedy, and the standard of proof to obtain them is the civil standard of the balance of probabilities, the procedures followed are those usually associated with criminal matters’ (9.106).
If you have been charged or believe that you may be charged with an offence related to domestic violence, it is crucial that you seek appropriate and professional legal advice. It is important that this happens as soon as practicably possible, given the tenuous legal nature of the process outlined above. Talk to our Sydney Criminal Lawyers who specialise in Apprehended Domestic Violence Orders 02 9261 - 8640