In Western Australia, the family of a victim of domestic violence is suing the state government and the police service for failing to act or investigate breaches of domestic violence orders which took place.
This failure in the duty of care raises questions about the obligations of the police and government organisations to investigate claims of domestic violence, and protect victims.
Victim’s fears uninvestigated
Mother of seven Andrea Pickett was murdered by her estranged husband in 2009, in front of one of her daughters.
Before the murder, she had made numerous requests for help to police and other agencies after multiple breaches of the restraining order held against her husband Kenneth Pickett.
Four days before her murder, Mrs Pickett had gone to police after finding handwritten letters from her ex-husband and a machete left at her home.
Although she stated repeatedly that she feared her husband would kill her, a coronial investigation revealed that police had failed to investigate and at the time of her death hadn’t even assigned her case to an officer.
Mrs Pickett’s family are claiming that police failed in their duty of care towards Mrs Pickett and that they had a responsibility to investigate once they were made aware of the breaches.
The family is seeking financial compensation and changes to the WA legal system to make the police more accountable for investigating alleged breaches of AVOs.
What are the penalties for breaching an AVO in NSW?
If someone contravenes the terms of an AVO in NSW, there are a number of penalties they potentially face.
These can include fines, good behaviour bonds and even imprisonment especially if the contravention involves physical violence.
They can also face other criminal charges such as common assault or assault occasioning actual bodily harm depending on the circumstances surrounding the breach.
There have been a number of cases where members of the community have complained about the leniency of penalties for breaching AVOs.
Often if someone is alleged to have breached an AVO, they will receive a good behaviour bond which can be argued doesn’t act as much of a deterrent to future breaches.
When determining what penalty to give someone for breaching an AVO, the court will take into consideration a range of factors including any previous criminal record and what the breach involved.
Often breaches of AVOs involve stalking, intimidation, and in some cases, property damage.
In these cases, criminal charges may be brought for intimidation or recklessly damaging or destroying property.
Are police doing enough to investigate breaches of AVOs?
When it comes to domestic violence, police in NSW have an obligation to serve someone with an AVO if they suspect that domestic violence is taking place.
This often means that an AVO will be issued on the basis of unsupported complaints, which can be frustrating for innocent defendants who are the subject of false complaints by angry or vengeful former partners, friends, associates or neighbours.
Police powers were recently increased to allow AVOs to be approved without the presence of a magistrate in certain circumstances.
Alleged perpetrators of domestic violence can now be given an AVO even if the alleged victim doesn’t consent or want the AVO to take place.
It seems incongruous that if the AVO were breached, police would not be under the same obligations to investigate the incident.
In NSW there are laws in place to protect victims of AVOs, but some victim groups believe that they are not always enforced and that complaints are not always treated seriously.
Domestic violence is a difficult area because there is often little or no independent evidence upon which police can base their decisions. It is argued that without sufficient training and an open mind, police are unable to identify who the real victims are and who is genuinely at risk.
The different rules that are in place for issuing AVOs as opposed to pressing charges for breaching AVOs makes it unclear as to what legal obligations police officers have to victims who have a genuine reason to fear for their lives in different circumstances.
More training in domestic violence issues and clarity around police obligations could result in police spending less time pursuing frivolous and vexatious AVOs and claims of AVO breaches, and having more time to spend investigating the serious situations where someone is genuinely in danger.