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The Crimes (Domestic and Personal Violence) Act 2007 (NSW) provides the relevant test the court must consider before exercising its discretion. With respect to Apprehended Domestic Violence Orders, the relevant section of the Act is s 15:

Application for making of apprehended domestic violence order by court

(1) An application may be made in accordance with Part 10 for an apprehended domestic violence order for the protection of:

(a) a person against another person with whom he or she has or has had a domestic relationship, or

(b) two or more persons against another person with whom at least one of those persons has or has had a domestic relationship.

(2) An application is to be treated as an application for an apprehended personal violence order if none of the persons for whose protection the order would be made has or has had a domestic relationship with the person against whom it is sought.

(3) Subsection (2) does not apply to a provisional order that is made by a senior police officer and treated as an application for an order pursuant to section 29. An Apprehended Personal Violence Order (APVO) on the other hand, is brought where no domestic relationship exists between the parties. This may, for instance, apply in situations where a person seeks protection against a co-worker, a neighbour or even a complete stranger. The relevant section of the Act is s 18:

Application for making of apprehended personal violence order by court

(1) An application may be made in accordance with Part 10 for an apprehended personal violence order for the protection of one or more persons against another person.

(2) An application is to be treated as an application for an apprehended domestic violence order if one or more of the persons for whose protection the order would be made has or has had a domestic relationship with the person against whom it is sought.

There are two different ways in which an ADVO or APVO can be taken out. An application may be made by the Police, or an application can be brought privately by the person who is seeking protection. Whoever is initiating the process will issue an application notice subject to the Act. If the Police have indicated that they are not bringing the application then it is always advisable to obtain legal advice. Generally speaking if an actual offence, such as an assault or other behaviour has occurred, or if Police believe there is merit in bringing an application for an AVO, they will do. That said, the individual who is seeking protection is often in the best position to know if that protection is warranted or not, so may bring a private application.

The Police policy is such that in situations of domestic and family violence in particular, they take a proactive role in bringing applications for ADVOs to protect vulnerable members of the community. It is also not unheard of for the Police to take over a private application if circumstances change or the need for protection is seen as having been raised. Courts must make an AVO when an individual has been found guilty of certain offences under the Act. Under s 39, if a domestic violence offence (or offence listed in s 13 of the Act) has been found to have occurred, then the Court must make an ADVO. Further, the Court must also make interim orders in certain circumstances outlined in s 40 of the Act, namely where a person has been charged with what the Court deems to be a serious offence against a person.

What will be considered by the Court?

As mentioned previously, an AVO is not a criminal offence, and as such the burden of proof that falls on the applicant is the civil standard – on the balance of probabilities. Under s 16 of the Act, a Court may grant an ADVO if on the balance of probabilities the person has reasonable grounds to fear and in fact fears either the commission of a personal violence offence, or other conduct like stalking or intimidation. This is therefore a two step process of sorts; whether the fear is objectively reasonable and whether the person is actually fearful.

That the person is in fact fearful is not relevant in some circumstances; if they are a child, suffers from below average intelligence or has already been a victim of the defendant, it is likely that the defendant will commit an offence or making an order is necessary to protect the person from further violence.

Under s 16 of the Act

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 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 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.

The criteria are fundamentally the same for an APVO, notwithstanding reference to domestic relationships and experiences or patterns of violence between the applicant and the defendant.

Under s 19 of the Act

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.

In the case of both ADVOs and APVOs the Court is required to consider the safety and protection of the person seeking the order and any children directly or indirectly affected by the conduct of the defendant alleged in the application for the order (contained in both s 17(1) and s 20(1) of the Act). The Court may take into account the hardship that may be caused by making or not making the order, issues of prohibiting or restricted access to a residence and accommodation needs, as well as any other relevant matter.

Recent Amendments and the focus on Domestic Violence

The New South Wales legislature passed and recently brought into force amendments to the Criminal Procedure Act 1986 (NSW) in the form of the Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014 (NSW). These amendments include s 76A which states, at subsection (1) 'Evidence for the prosecution may be given in the form of a recorded statement instead of a written statement, if the offence is a domestic violence offence.'

This allows the use of video evidence, recording at the scene, or immediately after police arrival at the scene of domestic and family violence offences. This evidence is then admissible for use in Court, to provide an accurate view of the impact of domestic violence on victims. It is clear that reliving these situations in Court is something that would be difficult for victims, and it is also often the case that victims would otherwise withdraw statements or refuse to give evidence. An excerpt taken from the Second Reading speech when this Bill was introduced to Parliament provides insight into the purpose of these amendments.

'... The power dynamic that typifies domestic violence does not stop at the courtroom door. There is a risk of re-traumatisation of victims. They must attend court and give oral evidence from memory, and usually in front of the perpetrator, about a traumatic incident. They may face pressure from a perpetrator to stop cooperating with the prosecution. This can result in victims being reluctant to come to court or changing their evidence once in the witness box. Some may choose to not report an incident to police. The Bureau of Crime Statistics and Research estimates that only half of domestic assaults are reported to police. New measures for giving evidence using available technology are needed to reduce the trauma faced by victims when in court. These reforms provide such measures by introducing a new part into the Criminal Procedure Act 1986 to apply to the evidence of domestic violence complainants.'(21 October 2014, Criminal Procedure Amendment (Domestic Violence Complainants) Bill 2014. Mr Brad Hazzard, Attorney General and Minister for Justice).

What if I need immediate protection?

If you are in need of immediate protection the best advice is to call the Police. The Police may make an application for a provisional AVO in circumstances where they believe it is necessary 'to ensure the safety and protection of the person who would be protected by the provisional order or to prevent substantial damage to any property of that person.'

It is also possible to seek that the Court make interim orders to protect you if it is necessary and appropriate to do so in the circumstances, pursuant to s 22 of the Act.

What should you do?

If you are in need of immediate protection contact the Police. If you need legal assistance please feel free to contact us. We can assist you in bringing a private application for an AVO.

It may be that you are the defendant in an AVO matter. Whether an AVO is warranted or not, we are able to assist. Our experienced lawyers can advise you and represent you in Court.