It is an unfortunate reality that an increasing number of Family Law matters have some form of Protection Order in place to protect a party and/or children.
The most common form of protection orders seen in family law matters are either Apprehended Violence Orders and/or Apprehended Domestic Violence Orders (‘AVO’).
These orders are used to put restrictions on a particular person (the defendant) to provide protection for the person in need of it. In most circumstances, these orders are initially put in place by the police following a domestic violence related event or report being made. The defendant will then be required to appear before a Magistrate of the Local Court, usually a few days later.
All AVOs will have the following ‘standard’ conditions for the protection of the person in need of it and anyone they are in a domestic relationship with:-
That a person must not:
a. assault or threaten;
b. stalk, harass or intimidate; or
c. intentionally or recklessly destroy or damage any property that belongs to or is in the possession of the protected person.
Additionally, other common orders relevant to family law matters are:-
- The defendant must not reside at the premises at which the protected person(s) may from time to time reside, or other specified premises. This order can also be adapted to include a person’s place of work.
- The defendant must not approach or contact the protected person(s) by any means whatsoever, except through the defendant’s legal representative or as agreed in writing or permitted by an order or directions under the Family Law Act 1975, for the purpose of counselling, conciliation or mediation.
- The defendant must not approach the protected person(s) or any such premises or place at which the protected person(s) from time to time reside or work within 12 hours of consuming intoxicating liquor or illicit drugs.
When the matter appears in the Local Court, it is commonplace for the defendant to simply accept the terms of the AVO, particularly if the length and conditions proposed by the police are not too onerous. This is mainly due to defendants being able to agree to the AVO on a “without admissions” basis. This means that no findings of fact are ever made against the defendant and that the AVO is not recorded as a criminal offence. It is only if the terms of an AVO are breached that a criminal offence is committed.
If the AVO is contested, then the Local Court will adjourn the matter and list the matter for hearing as well as setting a timetable for the filing of evidence. If there is a related criminal charge(s), the AVO will usually follow the criminal charges without a timetable being implemented.
At the hearing, a Magistrate will decide whether an AVO is appropriate by assessing whether the person in need of protection holds genuine fears of the defendant. It is important to note that the Magistrate only needs to be satisfied of this on the Balance of Probabilities rather than the much higher standard of Beyond Reasonable Doubt.
Effect on Family Law Proceedings
Despite AVOs being viewed as a less serious alternative to a criminal charge, and that no findings of fact are usually made against a defendant, they are often given significant weight in family law proceedings.
The main reason for this is that the Family Law Act dictates that the paramount consideration is always what is in ‘the best interest of the child(ren)’. Furthermore, section 68CG of the Family Law Act requires that when determining what is in the best interest of the child(ren), the Federal Circuit and Family Court of Australia (“the Court”) must ensure that any order it makes does not expose any party to an unacceptable risk of family violence. This, coupled with the ever-increasing concern and public awareness of domestic and family violence, means that the Court will take a cautious approach in most matters, but this is especially the case in circumstances where an AVO is in place.
It is therefore vital that if a party is issued with an AVO that they also keep in mind the possible ramifications that it could have on any family law proceedings. With that in mind, it is also important for family lawyers to remember that a significant amount of AVOs are put in place with the consent of the defendant and without any findings of fact made against them.
What else can the Court do?
If an AVO is not currently in place, or it does not provide adequate protections, then section 68B of the Family Law Act empowers the Court to make an injunction protecting the child(ren) of a relationship and their family members.
While an injunction pursuant to section 68B is an effective tool at the court’s disposal, there is currently a bill before Parliament which will allow for a nationally recognised order of the court, rather than an injunction.
If passed, the Family Law Amendment (Federal Family Violence Orders) Bill will introduce a Family Violence Order which, according to the Hon. Daniel Thomas, will:
“Establish federal family violence orders and provide for their criminal enforcement. This reinforces the government’s recognition of family violence as not a private matter but a criminal matter of public concern. Victims of family violence who have matters before the family courts will no longer need to separately go to a state or territory court to seek enforceable protection and will be able to apply for a federal family violence order”.
As these orders would grant even more powers to the Court, they will allow for further protection and recognition to the victims of family and domestic violence. This increase of powers and options will have the correlating effect of increasing complexity in matters with any sort of protection order, especially in relation to parenting matters and any arguments about who may pose an unacceptable risk.
If you or anyone you know are suffering from domestic or family violence, the following organisations which can provide help and support:
• Rape & Domestic Violence Services Australia.
• Domestic Violence Line (Ph 1800 656 463).
• No to Violence.
• Relationships Australia.
• Women’s Legal Services NSW.
• LawAccess NSW.
• Legal Aid.
We understand that it takes courage to seek help from family and domestic violence and it can be very difficult. If you require assistance, please contact Dorter Family Lawyers and Mediators on (02) 9929 8840 where we can arrange for a confidential discussion.