On May 23rd police powers were increased to give NSW officers above the rank of sergeant the ability to issue on the spot Apprehended Violence Orders (AVOs) in situations involving domestic violence. As well as issuing AVOs immediately, officers can also demand that the alleged perpetrator leaves the family home or detain them for up to two hours to allow the AVO to be served.
Why have these changes been made?
With four out of five domestic violence incidents occurring out of normal working hours it was previously very difficult to get an immediate AVO against the alleged perpetrators. Without any available magistrates to issue an interim AVO, police would often have to leave the alleged victims with the perpetrator, potentially leaving them at risk of further harm and intimidation.
These changes are intended to address the problem of not having a magistrate available and take into consideration the fact that the majority of domestic violence incidents take place when there isn’t likely to be a magistrate available to issue an interim AVO.
How will this change the AVO process in alleged domestic violence situations?
Previously if police were called out to an alleged domestic violence incident, if a magistrate wasn’t available they would be able to start the process of applying for an interim AVO on behalf of the alleged victim. However if the AVO couldn’t be issued they would need to leave the defendant with the alleged victim and serve them with the interim AVO at a later date.
Under the new powers, if police serve someone with an AVO on the spot, they can be directed to leave the property immediately and will have to abide by the terms of the AVO until they appear in court. A court hearing will still be scheduled for a time when a magistrate is available and the defendant (or his or her criminal lawyer) will be able to present their arguments against the AVO if they disagree.
During the court hearing the terms of the interim AVO will be changed if necessary and as long as all parties agree, a full AVO will be issued. The process for this will be the same as previously.
What are the downsides to the new police powers?
Although many domestic violence organisations have shown approval for the changes, they have also highlighted a number of potential limitations for police and for defendants.
Domestic violence situations are often complex in nature and without specialist training in dealing with these types of incident it is possible that victims could be disadvantaged. Perpetrators of domestic violence are skilled at manipulation and convincing police that they are the victim and this could lead to misunderstandings and possibly even lead to victims mistakenly being given AVOs.
The dynamics can be even more complex in situations involving vulnerable victims including people with intellectual disabilities, same sex and lesbian couples, mental illness sufferers and people who don’t speak English as a first language. Without adequate understanding of these situation and the complexities, it’s possible that alleged perpetrators may not receive fair treatment.
Representatives from Women’s Legal Services NSW, although supportive of the changes, have highlighted that there still needs to be judicial oversight when issuing provisional AVOs. There is a danger that these changes could lead to police officers being quick to issue AVOs without a full understanding of the situation and who the real victim is.
If you have been unfairly issued with an AVO you don’t have to accept the terms without question – speak to an experienced criminal lawyer about your options and how you can prevent an interim AVO becoming a full AVO.