Domestic Violence Frequently Asked Questions
- Why did the police take out an AVO against me? My partner did not want one.
- Why did the police charge me? My partner did not want me charged.
- Can my partner get the charges of assault or the AVO withdrawn?
- What happens if my partner does not turn up to court?
- What effect will an AVO have on my future?
- Do I need a lawyer to appear for me?
- What conditions in an AVO can the court impose?
Why did the police take out an AVO against me?
The law in NSW states that a police officer must make an application for an order if they suspect or believe that a domestic violence offence 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.
In November 2008 the NSW Police service published a domestic and family violence policy. That policy makes the following statements:
“The NSW Police Force will use a proactive approach in dealing with offenders. This approach requires police to not only respond to incidents of domestic and family violence and give strongest consideration to arrest, but to develop strategies to reduce the negative behaviour of offenders who have had AVO applications consistently withdrawn.”
“The NSW Police Force is committed to using all lawful means to policing domestic and family violence. This includes wherever possible, removing offenders from the victim, taking out an AVO on behalf of victims and any children living or spending time with the victim (whether they are by consent or not), investigating breaches of AVOs, and developing solutions to managing repeat offenders.”
Why did the police charge me?
The New South Wales Police policy for more than a decade has been to actively arrest alleged offenders of domestic violence despite the wishes of the alleged victim. In November 2008 the NSW Police service published a domestic and family violence policy. That policy makes the following statements:
“The NSW Police Force encourages police to give the strongest consideration to arrest offenders of domestic and family violence. The safety, protection and wellbeing of victims are of paramount concern to police.”
“The NSW Police Force enforces a pro prosecution response to the investigation and management of domestic and family violence. Charges will be laid against offenders where evidence exists to support criminal charges.”
Can my partner get the charges of assault or the AVO withdrawn?
The answer is yes, but this rarely occurs. It is obvious from the policy statements reproduced above that the NSW Police Service is determined that alleged domestic violence offenders are held accountable for their actions. This means that almost all charges are proceeded with despite the merit of the submissions made by the alleged victim or alleged offender.
The NSW Police service’s domestic and family violence policy also states:
“Offenders of violence will be held accountable and challenged to take responsibility for their actions.”
What happens if my partner does not turn up to court?
If the alleged victim in a domestic violence case does not appear at court a number of things may occur including:
- The charge of assault or the AVO is dismissed.
- The matter is adjourned and a warrant is issued for the arrest of the alleged victim (this is only likely to occur where the victim has been subpoenaed and has disobeyed the subpoena).
- The matter is adjourned until another date to see if the police can get the alleged victim to court.
- The matter is stood in the list at court until the police go to the alleged victim’s house or workplace.
What effect will an AVO have on my future?
You will not get a criminal record if the court makes an AVO. However, you should be aware of the consequences of having an order against you. They include:
- If you have any firearms, you must give them to the police. Your licence or permit to own a firearm is automatically suspended by an interim Order and revoked by a final Order.
- You cannot be given a new firearms licence until 10 years after the Order has ended.
- The fact that an AVO was made against you will be kept on a police database.
- An Order can also affect licences to work as a security officer, police officer and other occupations where a police background check is required.
- If the Order includes children, the Commission for Children and Young People may be notified. It may affect your ability to hold a job which involves contact with children.
If you breach the AVO you may be charged with a criminal offence. The maximum penalty for breaching an order is a fine of $5,500 and a prison sentence for 2 years. Section 14(4) of the Crimes (Domestic and Personal violence) Act states that unless the court otherwise orders, a person who is convicted of an offence of breaching an AVO must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person.
Do I need a lawyer to appear for me?
If you are agreeing to an AVO and you are confident in public speaking (very little involved) there may be no real advantage in having a lawyer appear for you. If you do appear for yourself and you are agreeing to the making of the AVO we recommend you agree to the order without admissions.
If you are opposing the making of an AVO we recommend that you use a lawyer who specialises in criminal law and has experience in domestic violence matters as witnesses will have to be cross examined and submissions made in respect to matters of law and the facts in issue.
What conditions in an AVO can the court impose?
Every AVO made must, without exception, include the following conditions (usually referred to as the “mandatory conditions”:
- assaulting, molesting, harassing, threatening or otherwise interfering with the protected person or a person with whom the protected person has a domestic relationship,
- engaging in any other conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship,
- stalking the protected person or a person with whom the protected person has a domestic relationship.
Other Conditions that can be Imposed
The court also has wide discretion to impose other conditions. These conditions may include:
(a) prohibiting or restricting approaches by the defendant to the protected person,
(b) prohibiting or restricting access by the defendant to any or all of the following:
- to any premises occupied by the protected person from time to time or to any specified premises occupied by the protected person,
- to any place where the protected person works from time to time or to any specified place of work of the protected person,
- to any specified premises or place frequented by the protected person
(c) prohibiting or restricting the defendant from approaching the protected person, or any such premises or place, within 12 hours of consuming intoxicating liquor or illicit drugs,
(d) prohibiting or restricting the possession of all or any specified firearms by the defendant,
(e) prohibiting the defendant from destroying or deliberately damaging or interfering with the protected person’s property,
(f) prohibiting or restricting specified behaviour by the defendant that might affect the protected person.
WHERE TO NEXT?
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.