ByLawyers News and Updates

ADVO – NSW

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From 31 March 2025, new offences for knowingly contravening an apprehended domestic violence order (ADVO) apply.

The new offences are found in s 14(1A)–(1C) of the Crimes (Domestic and Personal Violence) Act 2007.

Section 14(1A) makes it an offence to knowingly contravene an ADVO with the intention of causing physical or mental harm to the protected person under the order, or to cause the protected person to fear for their safety or that of another person. A maximum penalty of 3 years imprisonment or 100 penalty units, or both, applies.

Section 14(1B) provides that a person intends to cause a protected person:

  • physical or mental harm; or
  • to fear for their safety or the safety of another person,

if the person knows the conduct is likely to cause that harm or fear.

Under s 14(1C), a person who:

  • knowingly contravenes an ADVO against them; and
  • on at least two other occasions in the 28 days immediately preceding the contravention, also knowingly contravened:
    • an ADVO in relation to the same person who was protected under the ADVO the person contravened earlier; or
    • the same ADVO, whether or not in relation to that same protected person; or
    • an ADVO arising from the same application under Part 10 of the Crimes (Domestic and Personal Violence) Act 2007, whether or not in relation to the same protected person, and
  • the conduct would be considered by a reasonable person to be likely to cause the protected person physical or mental harm, or to fear for their safety or the safety of another person, whether or not that harm or fear was actually caused,

is guilty of an offence subject to a maximum penalty of 5 years imprisonment or 150 penalty units, or both.

The By Lawyers Apprehended Violence Order (NSW) guide has been updated accordingly.

County Court – VIC

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Common Law Division Practice Note PNCLD 1-2025 takes effect in the County Court from 25 March 2025 and replaces 21 existing practice notes.

The new practice note, which stretches to 159 pages and includes a dictionary setting out key definitions, covers all the practices and case management expectations for all proceedings in the Common Law Division, including for the various specialist lists, and Appeals.

The new Common Law Division practice note supersedes the following practice notes:

  • PNCLD 1-2023 Common Law Division practice note
  • PNCLD 2-2023 Serious injury applications practice note
  • PNCLD 3-2022 WorkCover List practice note
  • PNCLD 4-2023 Family Property List practice note
  • PNCLD 5-2023 Medical List practice note
  • PNCLD 6-2023 Confiscation List practice note
  • PNCLD 7-2023 Defamation List practice note
  • PNCLD 8-2023 Adoptions, Surrogacy and Name Change List practice note
  • PNCLD 12-2023 Applications for approval of compromise practice note
  • PNCLD 13-2022 Applications by a solicitor for costs in work injury damages claims practice note
  • PNCLD 14-2023 Applications to file a notice of ceasing to act practice note
  • PNCLD 15-2023 Applications to take evidence by deposition practice note
  • PNCLD 16-2023 Information Technology (IT) practice note
  • PNCLD 17-2023 Judicial mediation practice note
  • PNCLD 18-2023 Subpoenas practice note
  • PNCLD 19-2023 Institutional Liability List practice note
  • PNCLD SP-2-2022 Suppression, pseudonym (and like) order applications practice note
  • PNCLD SA 2-2022 Applications for compensation under s85B of the Sentencing Act 1991 practice note
  • PNCLD SO 2-2022 Applications for supervision orders under the Serious Offenders Act 2018 practice note
  • PNCLD FV 2-2024 Family Violence and Personal Safety Intervention Order appeals practice note
  • PNCI 9-2021 eCase: electronic subpoenas practice note.

The specialist lists dealt with by the practice note are:

  • The Civil Claims lists: Serious Injury List; WorkCover List; Medical List; Institutional Liability List; Defamation List; Family Property List; and the General List.
  • Adoptions, Surrogacy and Name Changes List.
  • Confiscation List.
  • Appeals and Post Sentence Application List.

Commentary links for both Acting for the Plaintiff and Acting for the Defendant in the By Lawyers County Court (VIC) publication have been updated accordingly.

Magistrates’ Court – VIC

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Two important new practice directions apply in the Magistrates’ Court of Victoria from 10 February 2025.

  1. Practice Direction No. 1 of 2025 governs practice and modes of appearance, in person or online, in proceedings across the criminal and family violence divisions of the Magistrates’ Court. It revokes Practice Direction No. 6 of 2022.
  2. Practice Direction No. 2 of 2025 governs practices in the civil division of the Magistrates’ Court. It revokes 51 previous practice directions.

The following are the key points of each.

Magistrates’ Court criminal and family violence jurisdiction

Practice Direction No. 1 of 2025 sets out the procedure for all appearances, online or in person, except a first remand hearing which is covered by Practice Direction 1 of 2024.

In general, online appearances by clients and practitioners are available, encouraged, and in many cases required. However, physical appearances are also possible, mainly by request, and in some cases required.

The practice direction sets out detailed arrangements for all types of appearances, including:

  • accused on bail or summons;
  • bail applications and other hearings with the accused in custody;
  • contest mention hearings, committal mentions, special mentions, and applications, and matters in Judicial Registrar lists;
  • contested hearings and committal hearings;
  • specialist courts and programs;
  • intervention orders – applications and hearings; and
  • filing materials with the court.

Represented accused and their lawyers are to appear in person or online as provided for in the practice direction, unless the court directs otherwise.

If a represented accused appears in person, their lawyer must also appear in person, unless otherwise directed by the court.

If a practitioner seeks to appear in a mode contrary to that set out in the practice direction, they must apply to do so by contacting the relevant court registry at least 7 days before the date.

When appearing online, it is the practitioner’s responsibility to ensure they and their client have audio-visual capability from an appropriate private location, and their online appearance must not cause delay or interrupt the court.

Magistrates’ Court civil jurisdiction

Practice Direction No. 2 of 2025 applies to all civil proceedings including the WorkCover Division, Industrial Division, and Federal Jurisdiction matters. It excludes matters arising under the Family Violence Protection Act 2008, the Personal Safety Intervention Orders Act 2010, and Industrial Division criminal proceedings.

The practice note covers the following for general civil matters:

  • overview and purpose;
  • definitions;
  • jurisdiction;
  • self-represented litigants;
  • issuing proceedings, filing documents and corresponding with the court;
  • attending the court;
  • consent orders;
  • appropriate dispute resolution;
  • applications in open court and directions hearings;
  • call overs for contested matters and open court applications;
  • contested hearings; and
  • inspecting subpoenaed documents.

Specific directions in the WorkCover Division include:

  • medical panel referrals;
  • inspection of medical and other records;
  • subpoenas relating to confidential communications; and
  • dependents’ compensation.

Specific directions in the Industrial Division include:

  • support for self-represented litigants;
  • filing documents;
  • pre-hearing conferences; and
  • contested matters.

Specific directions in the Federal jurisdiction concern the commencement of proceedings.

Appendix A to the practice direction lists the 51 previous Magistrates’ Court practice directions that are revoked.

Publication updates

The commentary and hyperlinks in the following By Lawyers Magistrates’ Court (VIC) guides have been updated accordingly:

Family violence – WA

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Changes under Part 7 of the Family Violence Legislation Reform Act 2024 (WA) (the Reform Act) commenced on 14 November 2024.

These provisions amend critical definitions in the Restraining Orders Act 1997 (the Act). The Act provides for family violence restraining orders.

Sections 3 to 6A of the Act define all relevant terms used in the Act, including what constitutes family violence. The amendments introduce the concept that a pattern of behaviour can constitute family violence, as well as a single act of violence or a series of such acts.

Section 5A(1) of the Act, as amended by the Reform Act, now defines family violence as:

(a) violence, or a threat of violence, by a person towards a family member of the person; or

(b) any other behaviour or pattern of behaviour by the person that coerces or controls the family member or causes the member to be fearful.

The Act now makes it clear that relevant behaviour, or a pattern of behaviour, can occur over a period of time, may be more than one act or a series of acts that cumulatively coerce or control a family member or causes them to be fearful, and is to be considered in the context of the parties relationship as a whole: s 5A(1A).

Section 5A(2) of the Act provides a non-exhaustive list of examples of behaviour, or patterns of behaviour, that may constitute family violence.

The By Lawyers Restraining Orders (WA) publication has been updated accordingly.

Other amendments under the Reform Act that affect bail and the way the criminal justice system deals with mentally impaired accused are yet to commence. The By Lawyers Magistrates Court Criminal (WA) guide will be updated when those further changes are proclaimed to commence.

Coercive control – NSW

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From 1 July 2024 the new offence of coercive control under s 54D(1) of the Crimes Act 1900 is included in the definition of personal violence offence under s 11 of the Crimes (Domestic and Personal Violence) Act 2007, and can therefore be the grounds for a court making an apprehended domestic violence order.

The offence is found in the new Division 6A in Part 3 of the Crimes Act 1900, inserted by the Crimes Legislation Amendment (Coercive Control) Act 2022.

Section 54D(1) creates an offence of abusive behaviour towards a person who is the offender’s current or former intimate partner. It is punishable by a maximum penalty of seven years imprisonment.

The offence requires a course of conduct consisting of abusive behaviour, and the offender must intend that the course of conduct coerce or control the victim.

An intimate partner is someone to whom the offender is or has been married or in a de facto relationship, or with whom they have or have had an intimate personal relationship.

A course of conduct is defined as behaviour that is either repeated, or continuous, or both. There is no minimum number of incidents, they need not be in an unbroken series, nor in immediate succession. Incidents both in and outside of NSW can be included.

Section 54F(2) provides a non-exhaustive list of what can constitute abusive behaviour, including:

  • causing harm to a child if a person fails to comply with demands made of them;
  • causing harm to the person against whom the behaviour is directed, or another adult, if the person fails to comply with demands made of them,
  • economic or financial abuse;
  • shaming, degrading, or humiliating a person;
  • harassing, monitoring, or tracking a person;
  • damaging or destroying property;
  • isolating a person or preventing them from keeping connections with their family, friends, or culture.

The amending Act also inserted a new s 6A into the Crimes (Domestic and Personal Violence) Act 2007 to provide a definition of domestic abuse, being:

…violent or threatening behaviour, behaviour that coerces or controls, or behaviour that causes a person to fear for their or others’ safety and wellbeing.

The new s 6A includes a non-exhaustive list of behaviours that can constitute domestic abuse. This largely mirrors the list in s 54F of the Crimes Act, but includes behaviour that exposes a child to the effects of domestic abuse.

Behaviour may be domestic abuse, and therefore ground an apprehended domestic violence order, even if it doesn’t constitute a criminal offence.

The By Lawyers Apprehended Violence Order (NSW) guide has been updated accordingly.

Intervention orders – VIC

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Following a recent Supreme Court decision, a declaration of truth is not sufficient evidence on which a court can make personal safety intervention orders.

Section 38 of the Personal Safety Intervention Orders Act 2010 provides that an application for an interim order must be supported by oral evidence or an affidavit, unless the orders are by consent or the requirement is waived.

Under s 38(1A) the court may waive the requirement that the application be supported by oral evidence or an affidavit if the applicant is a police officer and the application is made by electronic communication:

  • provided the court has considered whether it is practicable to obtain oral evidence or an affidavit before making the interim order; or
  • the application is made before 9 a.m. or after 5 p.m. on a weekday or on a Saturday, Sunday or a public holiday, and it was certified by the police officer in accordance with s 13(2).

As a COVID-19 response in 2022, the Magistrates’ Court introduced a declaration of truth form as part of the online application process for intervention orders.

In Myers v Satheeskumar & Ors (Judicial Review) [2024] VSC 12 the applicant challenged the validity of an interim intervention order on the basis that it was not supported by oral evidence or an affidavit, there being no consent and no waiver. The Supreme Court agreed with the applicant, finding that a declaration of truth is not the same as an affidavit and cannot ground an application for interim orders. In doing so, the the presiding judge noted:

I have concluded that the interim PSIOs are invalid, in spite of the public inconvenience and safety issues entailed by this conclusion. I am conscious that this conclusion could cast doubt on the validity of other interim PSIOs granted in similar circumstances. It may be a matter of urgent public concern if other interim PSIOs are subject to doubt by reason of any systematic defect in the manner they have been granted. It is unclear to me whether the approach of the Magistrates’ Court to this case is widespread. However that may be, any perceived solution must be left to the legislature, not the Court.

It is likely that the Magistrates’ Court will soon amend their form and online application to require an affidavit to be filed. There may also be a legislative response. However, until that happens, an application for an interim order cannot be supported by a declaration of truth, and unless a waiver applies the applicant will need to either give evidence or file an affidavit before the court can make any interim orders.

The commentary in the By Lawyers Intervention Orders (VIC) publication has been updated accordingly, and will be updated again if there are further developments.

Specialist Family Violence List – NSW

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A Specialist Family Violence List operates in some Local Court locations from 25 September 2023.

The Specialist Family Violence List Pilot Practice Note applies in the Downing Centre Local Court, Blacktown Local Court, Newcastle Local Court, Gunnedah circuit, excluding Tamworth, and Moree circuit. The list may operate at other local courts at the Chief Magistrate’s direction.

The practice note applies to all family violence related proceedings listed at those locations, which include:

  • All domestic violence offences, including breaches of Apprehended Domestic Violence Orders (ADVOs);
  • All applications for ADVOs, whether commenced by police or privately;
  • Family law applications if ancillary to an ADVO application.

Apprehended Personal Violence Orders and personal violence offences that are not domestic violence offences under s 11 of the Crimes (Domestic and Personal Violence) Act 2007 are excluded.

Eligible matters will automatically be placed in the list. Charges and related AVOs will be listed together and remain together as they progress.

There are different procedures for standalone ADVO proceedings and those with related criminal charges.

Lapsing interim order

The practice note provides that the court can deal with standalone ADVO matters in the Specialised Family Violence list by imposing a lapsing interim order (LIO). This is an alternative to a final order and operates to the same effect as a conditional discharge in a criminal matter.

If the court considers it appropriate to impose a LIO, the matter will be adjourned for a period at the court’s discretion and, if there are no breaches of the order during that period, the AVO may be withdrawn and dismissed.

If the defendant agrees to undertake counselling or other intervention during the adjournment period, this will be taken into account by the court when the matter returns.

Either party may return the matter to court at any time during the adjournment period to fix a date for a defended hearing. If a breach of the LIO results in charges, the court may relist the proceedings.

Each party can be heard on the suitability of an LIO. In determining whether to impose an LIO, the court may consider:

  • if it is by consent;
  • the complainant’s views, including if they do not want a final order and whether they have received independent advice;
  • the relationship between the complainant and defendant;
  • the seriousness of the allegations and the conditions being sought;
  • whether any LIO has been sought previously;
  • any impact of imposing an interim order rather than a final order;
  • whether the defendant is seeking treatment or counselling; and
  • any other matter the court thinks appropriate.

The commentaries in the By Lawyers Apprehended Violence Order (NSW) and Local Court (NSW) – Criminal guides have been updated accordingly.

Intervention orders – VIC

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Appeals against intervention orders made by magistrates are no longer considered de novo hearings, following a recent Supreme Court case.

Previously, appeals to the County Court under both the Personal Safety Intervention Orders Act 2010 and the Family Violence Protection Act 2008 were conducted as hearings de novo.  That is, the County Court conducted the trial of the application for an intervention order afresh and gave a decision based on the evidence before it. This meant the parties had to give their evidence and be cross-examined again.

In AAA v County Court of Victoria [2023] VSC 13 the Supreme Court held that an appeal to the County Court against an intervention order, or a refusal to make an order, is not an appeal de novo. It is a broad appeal by rehearing that allows for new evidence. It is not a hearing in which the applicant begins again with the magistrate’s decision being disregarded. The parties may adduce new evidence on appeal, but are not required to.  The County Court determines the appeal based on both the evidence at first instance and any new evidence before it.  The court’s task on appeal is to identify factual, legal, or discretionary error in light of all of the evidence before the court, including any new evidence.

Whilst the focus is on the identification of error, the error may be a factual one. As the County Court reconsiders the application, the error may be that the magistrate made erroneous findings of fact on the evidence available, or reached an erroneous conclusion on the ultimate question of whether the statutory criteria for making the order are satisfied.  Further, as the County Court determines the appeal at the time of the appeal, and new evidence may be adduced, it is not necessary to establish that the magistrate made an error based on the evidence before them at the time. It is open to the County Court to find error even if, had it been limited to the evidence before the magistrate, it would have reached the same conclusion as the magistrate.

The decision suggests that the conduct of final hearings in intervention order matters in the Magistrates’ Court will now be open to close examination and scrutiny on appeal.

The commentary in the By Lawyers Intervention Order (VIC) guide has been updated accordingly.

Lighthouse project expands – FED

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From 28 November the Federal Circuit and Family Court of Australia’s Lighthouse Project expands to include all major registries. This follows additional funding provided in the recent federal budget.

The Lighthouse Project is a family-violence and risk-screening initiative for parenting and parenting/financial matters. The legislative framework was provided by the Family Law Amendment (Risk Screening Protections) Act 2020.

The project was initially available in the Adelaide, Brisbane, and Parramatta registries. It now expands to include Cairns, Canberra, Dandenong, Darwin, Hobart, Launceston, Melbourne, Newcastle, Rockhampton, Sydney, Townsville, and Wollongong registries.

The Lighthouse Project’s key points are:

  • early risk screening through a secure online platform;
  • early identification and management of safety concerns; and
  • assessment and triage of cases by a specialised team, who will provide resources and safe and suitable case management.

All cases identified as high-risk following the screening process are referred to a dedicated list in the court, known as the Evatt List. This is a judge-managed list that focuses on early information gathering and intervention through a dedicated support team in appropriate cases.

When commencing or responding to proceedings in the applicable registries, parties will be asked to provide an email and mobile number to enable risk screening. Parties will then receive an email with a secure link and login details to complete the risk screening process.

See the FCFCOA’s Lighthouse expansion – General fact sheet for more information.

The By Lawyers Family Law Children guide has information on The Lighthouse Project under Pre-action procedures in the commentary.

Practitioners are also reminded of the related information on family violence and cross-examination of parties in the Going to court folders, and the separate By Lawyers guides covering apprehended violence, intervention, and restraining orders for family and personal violence under various state laws.

Joint criminal rules – SA

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Criminal procedure in the SA Magistrates Court has been overhauled with the commencement of the Joint Criminal Rules 2022 and the Uniform Special Statutory Rules 2022 on 29 August 2022. At the same time, the CourtSA criminal portal has gone live, for online filing and case management.

The By Lawyers Magistrates Court (SA) – Criminal, Traffic Offences and Intervention Orders guides have been extensively updated to reflect the new rules and procedures.

New rules

The Magistrates Court Act 1991, the Joint Criminal Rules 2022 and the Uniform Special Statutory Rules 2022 provide the framework for the way criminal, or criminal-related, matters are dealt with, including the commencement of proceedings.

The Joint Criminal Rules 2022 or the Uniform Special Statutory Rules 2022 govern all actions commenced in the Criminal Division and Petty Sessions Division of the Magistrates Court, other than the review of certain decisions made by the Chief Recovery Officer. They also apply to steps in proceedings taken on or after the commencement date.

The previous rules, the Magistrates Court Rules 1992 (Criminal), continue to govern steps in a proceeding taken before the commencement date.

All forms associated with the new rules will be added to the matter plans shortly.

Elder abuse proceedings

The Magistrates Court also has jurisdiction under Part 4 Division 6 of the Ageing and Adult Safeguarding Act 1995 with respect to applications by the Director of the Office for Ageing Well for orders preventing elder abuse, or proceedings for alleged contraventions of such orders. The matters are now dealt with in the Civil (General Claims) Division of the Magistrates Court. See the By Lawyers Intervention Orders commentary for further detail on elder abuse orders.

Changes to criminal procedure

The Information

The Joint Criminal Rules require that an Information be accompanied by a summary of the allegations with respect to each count, an antecedent report, or a document combining the two, any applicable bail agreement or details of bail, and a Notice relating to the highest charge category.

The new rules also require the information to identify whether the matter is a priority proceeding, which applies to the highest charge category.

The order of charge categories is:

  • major indictable;
  • Commonwealth indictable;
  • minor indictable;
  • summary; and
  • summary not punishable by imprisonment.

Depending on the nature of the most serious charge, an Information is also to be served with certain forms that may be filed by the defendant, including a Written Guilty Plea and Election for Trial in the District Court. The requirement to disclosure this additional information ensures compliance with s 105 of the Criminal Procedure Act 1921.

Defence disclosure

There are also new defence disclosure requirements when the prosecution has complied with its own obligations. Where the charge being heard in the Magistrates Court includes an indictable offence, the new rules provide that s 134 of the Criminal Procedure Act applies, as modified by the Joint Criminal Rules, in particular r 75.5.

In effect, if the prosecution makes an application supported by an affidavit stating it has no existing but unfulfilled obligations of disclosure to the defence, then the court has the power to order that a defendant disclose if it intends to adduce evidence at trial in relation to:

  • fitness to stand trial;
  • acting for a defensive purpose;
  • acting under provocation;
  • acting under automatism;
  • whether the alleged offence occurred by accident;
  • acting out of necessity;
  • acting under duress;
  • acting under a claim of right;
  • acting under intoxication.

The prosecution can make such an application up until 28 days before the trial date.

Initial adjournment

Under the previous rules, the court’s directions provided for an initial adjournment but generally required a defendant to indicate at the second appearance whether they intend to enter a plea of guilty or not guilty.

It is uncertain whether the court will treat matters commenced under the Joint Criminal Rules any differently. The Joint Criminal Rules appear to leave open the possibility that a plea will not be entered on the first occasion. See r 65.1 and the general power to adjourn under r 38.1.

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