ByLawyers News and Updates

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for a period at the court’s discretion and, if there are no breaches of the order during that period, the AVO may be withdrawn and dismissed.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.

Apprehended violence legislation – NSW

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Apprehended violence legislation in NSW has been further amended.

Amending legislation

Further provisions of the Stronger Communities Legislation Amendment (Domestic Violence) Act 2020 commenced on 27 March 2021.

Duration of ADVOs

Where a defendant is sentenced to a term of imprisonment which is to be served in a correctional centre, the apprehended violence legislation now requires the court to specify that any related apprehended violence order (ADVO) will be in force for a period of two years longer than the sentence imposed. That does not apply if the court otherwise orders, or if the offender is under 18 years of age.  The term of imprisonment refers to the full sentence imposed by the court, including non-parole and parole periods. The additional two years is calculated with reference to the total sentence imposed by the court at the time that the ADVO is made.

Harming animals

The apprehended violence legislation has also been amended in relation to harming, or threatening to harm, animals belonging to or in the possession of a protected person.

Conduct that causes a reasonable apprehension of harm to animals belonging to or in the possession of the protected person is now within the definition of ‘intimidation’.

A person who engages in that conduct is guilty of an offence that carries a maximum penalty of five years imprisonment or 50 penalty units or both.

The change to the definition of ‘intimidation’ means that harm to animals belonging to or in the possession of the protected person is now included in the mandatory prohibition in every AVO which prohibits damage or destroying property. This amendment was based on evidence that threatening, injuring or killing family pets is a tactic used to control and coerce partners or other family members in the context of domestic violence.

New standard order

There is a consequential amendment under the Crimes (Domestic and Personal Violence) Amendment (Standard Orders) Regulation 2021, which also commenced on 27 March 2021. This amends the Crimes (Domestic and Personal Violence) Regulation 2019 to include in the standard orders a prohibition on harming any animals owned by or in the possession of the person in need of protection under an order.

By Lawyers Apprehended violence orders (NSW) publication has been updated accordingly.

Apprehended violence – NSW

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Apprehended violence legislation in NSW has been amended.

Amending legislation

The Stronger Communities Legislation Amendment (Domestic Violence) Act 2020 commenced on 5 March 2021. The amendments affect a number of legislative provisions relating to apprehended violence orders, applications and proceedings.

Amendments

The By Lawyers Apprehended Violence Orders guide has been updated accordingly with all relevant amendments. These include:

  • the definition of ‘intimidation’ in the Crimes (Domestic and Personal Violence) Act 2007 now includes, in certain circumstances, actual or threatened harm to an animal;
  • a police officer may now issue a provisional AVO where there is a comparable interim or final order already in place and any such provisional order automatically becomes an application for a final order;
  • an apprehended violence order imposed by the court on offenders who are also sentenced to imprisonment for domestic violence offences continues for two years after the term of imprisonment is completed, unless another period is specified by the court;
  • a court may grant leave to make an application to vary or revoke an apprehended violence order which has an indefinite duration, if it is in the interests of justice to do so;
  • certain parts of AVO proceedings in which a complainant gives evidence must be held in closed court, unless a court otherwise directs;
  • domestic violence complainants now have the entitlement to give evidence using alternative arrangements to personal attendance, such as audiovisual link, in certain proceedings.

New standard order

There is also a consequential amendment arising from the Crimes (Domestic and Personal Violence) Amendment (Standard Orders) Regulation 2021 which commences on 27 March 2021. This amends the Crimes (Domestic and Personal Violence) Regulation 2019 to include in the standard orders a prohibition on harming any animals owned by, or in the possession of, the person in need of protection under an apprehended violence order.

Publication updates

In the course of making these amendments the AVO publication has also been reviewed by our author, with some minor enhancements made to the matter plan and commentary.

By Lawyers keeps you up to date!

Domestic Violence Evidence In Chief – NSW

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A recorded video or audio statement of a domestic violence complainant, known as Domestic Violence Evidence in Chief, or DVEC, is admissible as evidence in chief in criminal proceedings for domestic violence offences and in concurrent or related proceedings for applications for apprehended domestic violence orders under the Crimes (Domestic and Personal Violence) Act 2007. This is pursuant to the provisions of Chapter 6, Part 4B of the Criminal Procedure Act 1986.

In the recent Supreme Court case of Director of Public Prosecutions (NSW) v Banks [2019] NSWSC 363  the court determined that a DVEC may be admitted to evidence even where the complainant is not present at the hearing of the matter – although whether or not it actually will be admitted depends on the provisions of the Evidence Act, as for any other piece of evidence.

The  considerations under the Evidence Act of the complainant’s reliability and the prejudice to the defendant of not being able to cross-examine the complainant still have to be overcome. A defendant’s solicitor should still be prepared to argue strongly against the DVEC being admitted in those circumstances.

The commentaries in the By Lawyers Criminal and Apprehended Violence Orders publications have been amended accordingly.

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