Apprehended Violence Orders or AVOs have recently been amended in NSW
Here is some general information of a case example
Ms X was married to Mr Y and they had children. Mr Y assaulted Ms X and she gave police a video statement of her version of events. Mr Y has threatened to take the children from Ms X if she pursue the police matter regarding the assault.
WHAT CAN Ms X do?
Please note a video statement is called a DVEC’
Ms X has provided police with a DVEC statement and this can be used by police to seek an AVO on an interim immediate basis for the protection of her and her children. The DVEC was taken with her consent and she has later become reluctant. The police who took the DVEC can provide statements stating what they witnessed and how they took the DVEC and her consent to having given the DVEC statement and the DVEC itself are in fact admissible as evidence in a court. Relevant act: Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014 (NSW)/ Evidence Act NSW “admissibility”
Ms X can however object to giving evidence, however her objection can be overcome by rules specified in the Evidence Act and The Criminal Procedure Act.
If she is served with a subpoena to attend court, she must do so and she can be compelled to give evidence. However if her memory has faded and she lacks coherent recall, her evidence may in fact be unreliable and the court can cross examine her as a unreliable witness.
Other issues – the state of her home is clearly a concern if the safety and welfare of the children (‘best interest’ model) is at risk and police/care workers ‘community services’ can remove the children and place them in the care of the state. However if Ms X has been permitted to keep her children, she now must seek to have them protected. The police ADVO will cover ‘protected persons’ being the children and they can be named on the AVO. Ms X can also seek Family dispute resolution conferences are not encouraged when an issue of domestic violence arises. Mr Y can seek a parenting order and the Family Court can consider if the children are in need of protection.
If community services intervene, they may need to make a care plan that can be taken into account when final orders are made allocating the children to Ms X. Her evidence will be crucial to ensure the court consider the welfare of the children and that she does not lose her children to the threats made by Mr Y.
b) What advice and assistance would you give Ms X about her legal issues?
Ms X will need to apply for Legal aid to assist her both with her AVO and Family law parenting orders. Ms X can seek the assistance of the Women’s Legal Service who are in Lidcombe Or she can seek assistance from Legal Aid Domestic violence unit. Women’s shelters in NSW commonly provide accommodation, support and have links to legal services.
c) Assume Mr Y has commenced family court proceedings before the ADVO proceedings are listed in the Local Court. Ms X asks you how interim family court orders affect the ADVO proceedings. Outline your response to Ms X.
Interim AVO and Family court orders often conflict and orders override the AVO to the degree of the inconsistency. However any issues affecting the safety of children is considered by the family court and will impact the orders. To ensure clarity the police must be furnished with the orders to help avoid any conflicting action.