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Sydney: (02) 9261 4555
The law in NSW states that a police officer must make an application for an order if they suspect or believe that a domestic violence offence has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made.In November 2008 the NSW Police service published a domestic and family violence policy. That policy makes the following statements:
“The NSW Police Force will use a proactive approach in dealing with offenders. This approach requires police to not only respond to incidents of domestic and family violence and give strongest consideration to arrest, but to develop strategies to reduce the negative behaviour of offenders who have had AVO applications consistently withdrawn.”“The NSW Police Force is committed to using all lawful means to policing domestic and family violence. This includes wherever possible, removing offenders from the victim, taking out an AVO on behalf of victims and any children living or spending time with the victim (whether they are by consent or not), investigating breaches of AVOs, and developing solutions to managing repeat offenders.”
The New South Wales Police policy for more than a decade has been to actively arrest alleged offenders of domestic violence despite the wishes of the alleged victim. In November 2008 the NSW Police service published a domestic and family violence policy. That policy makes the following statements:“The NSW Police Force encourages police to give the strongest consideration to arrest offenders of domestic and family violence. The safety, protection and wellbeing of victims are of paramount concern to police.”
“The NSW Police Force enforces a pro prosecution response to the investigation and management of domestic and family violence. Charges will be laid against offenders where evidence exists to support criminal charges.”
The answer is yes, but this rarely occurs. It is obvious from the policy statements reproduced above that the NSW Police Service is determined that alleged domestic violence offenders are held accountable for their actions. This means that almost all charges are proceeded with despite the merit of the submissions made by the alleged victim or alleged offender.The NSW Police service’s domestic and family violence policy also states:
“Offenders of violence will be held accountable and challenged to take responsibility for their actions.”
If the alleged victim in a domestic violence case does not appear at court a number of things may occur including:
You will not get a criminal record if the court makes an AVO. However, you should be aware of the consequences of having an order against you. They include:
If you breach the AVO you may be charged with a criminal offence. The maximum penalty for breaching an order is a fine of $5,500 and a prison sentence for 2 years. Section 14(4) of the Crimes (Domestic and Personal violence) Act states that unless the court otherwise orders, a person who is convicted of an offence of breaching an AVO must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person.
If you are agreeing to an AVO and you are confident in public speaking (very little involved) there may be no real advantage in having a lawyer appear for you. If you do appear for yourself and you are agreeing to the making of the AVO we recommend you agree to the order without admissions.
If you are opposing the making of an AVO we recommend that you use a lawyer who specialises in criminal law and has experience in domestic violence matters as witnesses will have to be cross examined and submissions made in respect to matters of law and the facts in issue.
Every AVO made must, without exception, include the following conditions (usually referred to as the “mandatory conditions”:
Other Conditions that can be Imposed
The court also has wide discretion to impose other conditions. These conditions may include:(a) prohibiting or restricting approaches by the defendant to the protected person,
(b) prohibiting or restricting access by the defendant to any or all of the following:
(c) prohibiting or restricting the defendant from approaching the protected person, or any such premises or place, within 12 hours of consuming intoxicating liquor or illicit drugs,(d) prohibiting or restricting the possession of all or any specified firearms by the defendant,
(e) prohibiting the defendant from destroying or deliberately damaging or interfering with the protected person’s property,(f) prohibiting or restricting specified behaviour by the defendant that might affect the protected person.