By Jimmy Singh
National Recognition of AVOs in Australia
Before April 2017, ‘victims’ of domestic violence who had the protection of an AVO in a state were not protected from the perpetrator in any other State or Territory from that AVO.
This meant that, prior to April 2017, if the ‘perpetrator’ or ‘victim’ relocated to another State or Territory, the AVO was not be legally enforceable to protect the ‘victim’ in that other State or Territory.
In April 2017, New South Wales was the first state to create laws allowing it to be part of the creation of a national database of information- to allow sharing of information regarding AVOs across all states and Territories in Australia.
The Crimes (Domestic and Personal Violence) Act 2007 (NSW) outlines a national scheme that shares information to all court agencies and police stations across Australia so that an AVO in one State or Territory can be legally enforceable in another state or Territory.
The purposes of this is to ensure that AVO orders continue to be legally enforceable nationally so that the ‘victims’ don’t need to go through a court process of getting an AVO all over again in another State or Territory if relocating to another state.
The Sydney Morning Herald reports that the Minister for the Prevention of Domestic Violence, Pru Goward said, “making new orders automatically enforceable nationwide reduces stress for victims… Victims will only have to go through the process once.. and not worry when they relocate”.
Is an Overseas or Interstate AVO Legally Enforceable in NSW?
The law in NSW recognises ‘external protection orders’ to be legally enforceable within NSW to protect the ‘protected persons’ in the orders. The laws in Australia are currently only recognising New Zealand orders at the moment.
The New Zealand equivalent of an AVO made to prevent a person from committing a personal or domestic violence offence, intimidatory or stalking conduct towards the ‘protected person’ named in the order can be registered in a NSW Local Court for it to then be legally enforceable in NSW under section 97 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
An AVO that was made in New Zealand that becomes registered in NSW, or any apprehended domestic violence order (DVO) from another State or Territory of Australia will become a ‘recognised Domestic Violence Order’.
This means, that under the law in NSW, those recognised AVOs will automatically become legally enforceable against the ‘perpetrator’ to protect the ‘protected person(s)’ in NSW. This is reflected in section 98Y of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
A recognised AVO can be varied by a NSW Court or the Court from the State or Territory in which it was made in originally. Any such variation to the recognised AVO will then automatically become legally enforceable within NSW.
Similarly, a recognised AVO can also be revoked either within NSW or from within the State or Territory that it was made in. any such revocation of the recognised AVO will then also be automatically effective within NSW.
Unless the recognised AVO turns into a recognised variation, to maintain the ‘victim’s’ privacy, the ‘perpetrator’ named in a recognised AVO is not required to be notified of its recognition in other States or Territories of Australia.
The consequences of an AVO against the ‘perpetrator’ named in the AVO will face the same consequences as outlined in out previous blog on the consequences of an AVO. This means it will impact on that person’s firearms licence, working with children check clearance, tenancy agreements, and parenting orders in the Family Court.
Any interstate domestic violence order that was made before the new national recognition laws came into effect will only be legally enforceable after it is registered in NSW. It can be registered by applying at any NSW local court registry.
Once an AVO is recognised in NSW, it will have the same kind of force as it would as a NSW AVO. Breaching avo will result in criminal charges which attract heavy penalties of imprisonment.
AVO in NSW
The Crimes (Domestic and Personal Violence) Act 2007 (NSW) is the legislation on AVO’s in NSW.
To recap, an AVO isn’t criminal proceedings. It’s a civil proceeding, which if breached whilst in force can result in criminal charges which usually include breach of AVO.
See avo law for more information on AVOs.
Generally, an AVO can be applied for by police or an alleged victim (usually referred to as the ‘person in need of protection’ or ‘protected person’). Where the ‘protected person’ has a child, that child will usually also be included as a protected person under the law. This can have far reaching consequences on other aspects of your life which is explained in our earlier blog on what are the consequences of an AVO?
An AVO imposes orders restricting or stopping someone from doing certain things to protect you and anyone else mentioned in the AVO.
An AVO can only be made by the Court to protect you (‘protected person’) if you actually fear and hold reasonable grounds to fear the commission of a domestic violence offence or intimidation or stalking behaviour from the other person.
However, any orders to restrict or stop the defendant from doing anything in an AVO case will only be imposed if the Court believes it necessary or desirable for the safety and protection of the ‘protected person’.
Where the ‘protected person’ doesn’t actually hold fears from the defendant, but if the court believes there are reasonable grounds for him/her to hold fears, the Court cannot make any ‘additional orders’ such as preventing contact or approaching the ‘protected person’. The court in those circumstances can only impose the normal mandatory orders 1(a)(b)(c) mentioned in the AVO paper. This doesn’t apply where the ‘protected person’ is considered a ‘vulnerable person’ or a child in the AVO.
Where the AVO is accompanied with a serious offence such as common assault or other kind of assault allegation, the Magistrate will be required to continue the AVO on an interim basis for the duration of the proceedings- at least until the case is decided and finalised.
The AVO will become a final AVO against you once a plea of guilty is entered to an offence related to the AVO or once a court finds you guilty of such an offence following a contested hearing (unless the Magistrate believes that the AVO isn’t required i.e. because a final AVO has already been made).