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Legal considerations when working with Intimate Partner Violence (IPV). Working with ADVO’s, changes to the law and Subpoenas.

Jenny Sanbrook
Accredited Mental Health Social Worker Certified Gottman Therapist

In this article I give a brief summary on some of the changes to the law around Intimate Partner Violence and what you need to know regarding documentation and ADVO’s. (NB: The terms IPV and DV can be used Interchangeably – IPV is a more recent term used to capture the notion that violence can occur in any intimate relationship and is not reliant on the partner being in a “domestic situation” such as living together.

Any discussion of ADVO’s needs to recognise that even though this legislation is an effective tool in the fight against DV a piece of paper does not protect victims but there is no doubt that and ADVO can play a part in the protection from further DV. ADVO’s are dealt with in the Crimes (Domestic and Personal Violence) Act 2007. In the introduction of the new legislation around ADVO’S the government of the day took AVO’s away from the criminal justice system and relied on civil procedures and civil standard of proof 1. This change made it easier to apply for an ADVO but also made them more open to abuse.such as vexatious or frivolous claims.

Two types of AVO’s 

●  An AVO is a civil order of the court. It is not a criminal charge and will not be listed on a defendant’s criminal record, however a defendant can be charged with a criminal offence for contravening an AVO (commonly referred to as breach AVO) if they continue to engage in the prohibited behaviour.

●  APVO Apprehended Personal Violence Order

○ APVOs protect people from people with whom they do not have a domestic

relationship, for example, neighbours or work colleagues.

● ADVO Apprehended Domestic Violence Order

○  An ADVO protects people from people with whom they have a domestic relationship. The Crimes (Domestic and Personal Violence) Act defines domestic relationship as:

○  (a) is or has been married to the other person, or

○  (b) is or has been a de facto partner of that other person, or

○  (c) has or has had an intimate personal relationship with the other person,

whether or not the intimate relationship involves or has involved a relationship of

a sexual nature, or

○  (d) is living or has lived in the same household as the other person, or

○  (e) is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person (not being a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 or a detention centre within the meaning of the Children (Detention Centres) Act 1987), or

○  (f) has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person, or

○  (g) is or has been a relative of the other person, or

○  (h) in the case of an Aboriginal person or a Torres Strait Islander, is or has been

part of the extended family or kin of the other person according to the Indigenous

kinship system of the person’s culture.

○  Note: ‘De facto partner’ is defined in section 21C of the Interpretation Act 1987.

There are 3 types of ADVO’s: Provisional, Interim and Final Order

○  Provisional orders are short-term ADVOs that can be granted in urgent situations without the matter having to be brought before the court. They can be made on the spot.

○  Provisional ADVOs can be applied for by police to protect a person until the court has had the opportunity to hear the application.

○  An interim ADVO is a short-term order made by the court which can extend a provisional order or put protection(s) in place for the victim until a final ADVO application can be considered by the court.

○  This can last for 28 days

○  An interim court order remains in force until it is revoked, or a final ADVO is made

or withdrawn/dismissed

○  An interim ADVO to be made even when a defendant is not present at or aware

of the proceedings. However, for the interim order to be enforceable it must be

served on the defendant.

○  An interim order, once served, has the same effect as a final ADVO.

○  A final ADVO can be made by the court after a defended hearing, if a defendant

has been served with the ADVO documents but failed to appear in court or in cases where both parties consent to the conditions specified in the order.3

What the ADVO will stipulate orders about behaviour and contact 

● Orders about Behaviour

○  You must not assault or threaten the protected person or any other person having

a domestic relationship with the protected person.

○  You must not stalk, harass or intimidate the protected person or any other person

having a domestic relationship with the protected person intentionally.

○  You must not recklessly destroy or damage any property that belongs to or is in the possession of the protected person or any other person having a domestic relationship with the protected person.

○  These orders offer a minimum level of protection. They can be made even when the defendant and the protected person are still living together and/or still in a relationship, as they do not prevent contact or involve any exclusion from premises.

●  The additional orders can include orders about contact:

○  You must not approach the protected person or contact them in any way, unless

the contact is through a lawyer.

○  You must not approach:

○  The school of any other place the protected person might go for study,

○  Any place they might go for childcare, or

○  You must not approach or be in the company of the protected person for at least

12 hours after drinking alcohol or taking illicit drugs.

○  You must not try to find the protected person except as ordered by a court.

●  There may be other orders related to parenting

According to Bureau of Crime Statistics and Research (BOCSAR) 4 In 2013 the local court issued 25,000 ADVO’s issues across NSW. BOCSAR Found that the breach rate was: 5% for provisional orders, 9% for interim orders, 20% per cent for final orders (which are much longer in duration). However, overall longer ADVOs have been associated with a reduction in DV offending of between 41% and 59%, in the 12 month period.

In NSW an ADVO shows up on a police check but not on a criminal record unless it is breached. If someone breaches an ADVO they can be fined $5500 and face minimum 2 years imprisonment.

Changes to laws around Domestic Violence

1982 was the first time DV was recognised as a problem and came into the law under the Crimes Act of 1900 and related to physical assault “between husband and wife and included a child”. At this time DV was considered the same as “common assault” and there was no procedure for a breach other than another assault. Spouses were also compelled to give evidence in court. An ADVO had a six month time limit which was removed in 1987 “on the grounds that this was not long enough to remove the threat of the assaults” and the magistrate was given the power to set whatever time limit it appeared was appropriate to ensure the protection of the “aggrieved person”.

In the 1990’s, further amendments to ADVO’s were made for example interim phone orders were introduced for situations where courts were inaccessible. Penalties for breaching ADVOs were also increased from 20 penalty units ($2000 and 6 months imprisonment) to 50 penalty units ($5000 and 2 years imprisonment).

At this time, the first Specialist Domestic/Family Violence Court was established in South Australia allowing remote access, special arrangements for safety, dedicated lists on certain days and specialised staff allocated. Stalking and intimidation became a criminal offence and in 1992 the Firearms Act (1989) was amended to address gun usage – most importantly, a perpetrator would have a gun licence suspended and lose all rights to possess a firearm for a minimum of 10 years.

As previously mentioned, In 2007 the Crimes (Domestic and Personal Violence) Act was introduced as a separate part of the Crimes Act that deals with domestic and personal violence allowing for more attention to detail, specialist orders and nuanced changes . This change also meant that the government of the day took AVO’s away from the criminal justice system and relied on civil procedures and civil standard of proof which made it easier to apply for an ADVO but also made them more open to abuse.

In 2014 police were given wider powers – for example, police officers (of any rank) being able to give a wide array of directions, and even order the ‘detention’ of persons not under arrest (including at a Police station), during the period between when the Police officer decides to apply for an ADVO.  In some jurisdictions eg Queensland, the length of an ADVO increased to 5 years. In NSW the minimum length became 2 years but can be at discretion of the court eg 5 years, indefinite, or 2 years after released from custodial sentence. Breaches of ADVO’s were also increased from 2 to 3 years imprisonment (first breach) and 5 years (second breach).

In 2016, Domestic Violence disclosure scheme was introduced – allowing partners to conduct an internet search of any previous history of ADVO’s – this was a police led scheme and required an application by the partner to be lodged at a police station.

In 2017 ADVO’s were automatically applied across all states (National Scheme) and “absolute privilege” which gives immunity against liability/defamation in cases of sexual assault and counsellor confidentiality was granted. New “personal violence offenses” were created including distributing intimate images (revenge porn), and threatening to record or distribute such images. In 2018 “stalking” was expanded to include contacting over the internet and social media and “intimidation” was extended to include cyberbullying. At this time, non-fatal strangulation (choking, suffocation or strangulation) became a new stand alone offence with a maximum penalty of 7 years imprisonment.

In 2020 police were given greater search powers and all victims were given the option of giving evidence over Audio Visual Link (extended from Sexual assault victims only).

In 2021 all ADVO’s included the provision that the defendant can’t harm the victims animal and that the victim can’t be questioned directly by the accused but must be questioned through court appointed person.

2023 brought changes to the Domestic Violence Disclosure Scheme allowing victims to search a potential partners history through an online portal and avoid having to go to a police station. In November 2023 there was an inclusion of DV settlement issues into Family Law Act to give victims fairer outcomes in property settlements and manage financial abuse post divorce eg prevent the perpetrator hiding assets8 . The most recent change in 2024 is the introduction of coercive control to a standalone offence.

When working with ADVO’s consider the following principles:

Keep good records:

In the case of ADVO’s it is quite common for files to be subpoenaed therefore make sure you document all sessions, date and time, who was present in the session and specific clients words in quotations when necessary and safety plans and resources given / suggested. Ensure records are reliable as they may from the basis for evidence. Refrain from emotive or derogatory language, acknowledge basis of opinion, comply with relevant legislation, demonstrate respect for human dignity, self determination and autonomy.

The therapist may be called upon to write a report in which case it is important to seek advice from your professional body about details on writing a legal report. Report relevant details in an objective manner – be aware that in reports, a therapist can be pressured by a lawyer to remove some parts of a clients history case eg a previous disclosure of violence. It is always advisable to discuss with your professional body and supervisor requirements on information management and confidentiality.

Be prepared for Subpoenas:

The word Subpoena comes from the Latin phrase “Under penalty”. A subpoena is a legal document and is a court order issued at the request of a party to a case who believes that a person, who is not otherwise involved in the legal issue, possesses relevant documents or information. A subpoena issued by a lower court, such as the Magistrates court may be called a ‘summons’ . A subpoena compels a person to produce documents or give evidence in court proceedings. These can vary depending on court – civil, criminal, family.

There are three types of subpoena: A subpoena for production of documents (a written order requiring the person to produce a document or thing). A subpoena to give evidence (a written order requiring the person named to attend court as a witness to give evidence about what they saw or heard in a particular matter). A subpoena for production and evidence (written order requiring the person named to attend court as a witness to give evidence and to produce a document or thing. Failure to respond to a subpoena can lead to arrest or a charge of contempt of court.

You can raise an objection based on some grounds eg highly sensitive information – in which case you make an application to the court and they will decide the outcome eg limitations on what needs to be produced. It is not a breach of confidentiality if you are compelled by the court to produce documents. If you believe some part of the file are sensitive you can mark that specific information as sensitive. You can aim to get consent but if your client does not give you consent you are not in breach of your ethical guidelines- the client may want to pursue the objection through the court. Some jurisdictions provide protection to counselling from subpoena in criminal trials – See Australian Law Reform Commission for information on this.

In summary, the law surrounding Domestic Violence is in a state of regular review and change and there are many changes and amendments that attempt to balance victims safety with perpetrator rights (eg managing rates of incarceration rates and severity of sentencing). This article is a brief summary of a complex area and politically loaded area. Any therapist working with relationships (which is most of us at least by default!) would be wise to have some knowledge of the law and ADVOS and to maintain a flexible perspective which balances both victim safety and the rights of the perpetrator in a therapeutic context. As an aside – I run a full day training in this area see www.northsidetherapy.com.au go to for further information.

References

BOCSAR

https://www.bocsar.nsw.gov.au/Pages/bocsar_media_releases/2016/mr-Breach-of-ADVO-in-NS W.aspx

https://www.bocsar.nsw.gov.au/Pages/bocsar_media_releases/2016/mr-Breach-of-ADVO-in-NSW.aspx

Gibson, Phillip, (2024) AVO information sheet (Notes co/Simon Healy, Barrister, Samuel Griffith Chambers 2024)

Griffith, Gareth 1995, NSW Parliamentary Library research service

Law guides

–  A Practitioners Guide to Domestic Violence and the Law

http://wlsnsw.org.au/wp-content/uploads/domestic-violence-and-law.pdf

–  Guide for GP’s https://www.wlsnsw.org.au/wp-content/uploads/GP-toolkit-updated-Oct2019.pdf

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Jenny Sanbrook 2024

Queensland Treasury – Summary of criminal justice reforms 2015-2020.

Sydney Morning Herald

https://www.abc.net.au/news/2023-09-17/domestic-violence-victims-family-law-act-dv/102867340?utm_source=abc_n ews_app&utm_medium=content_shared&utm_campaign=abc_news_app&utm_content=mail

http://wlsnsw.org.au/wp-content/uploads/domestic-violence-and-law.pdf

The Law Society of NSW – Letter to Department of Justice Summary of amendments July 2018 – The Law Society of NSW www.lawsociety .com.au

Womens’ Legal Aid Service

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