Domestic violence

UNFORTUNATELY, domestic violence may occur in some lesbian relationships. Many people associate violence with men, since the majority of violent crimes are committed by men, but lesbians may also be violent in relationships - physically, mentally, or emotionally.

An article in the Sydney Morning Herald called domestic violence in the gay community a “silent epidemic” and estimated that there is violence in over 30% of same-sex relationships.[i] Reporting violence can feel like coming out for a second time according to the article, and many gay and lesbian couples wonder how they will be treated if they go to the police.

Thankfully, there are special trainings for police officers who respond to domestic violence calls from gay and lesbian civilians. Those officers march in the Mardi Gras Parade every year and are quite active in our communities. Oftentimes, these officers are gay or lesbian themselves; they are trained to understand the particularities and sensitivities of the dynamics in same-sex relationships so that they can respond better when there are incidents of domestic violence.

If your partner assaults you, has damaged your property, or you fear violence, you can make a complaint to the police who can apply for an Apprehended Domestic Violence Order (“AVO”)[ii] on your behalf.

 

What is an AVO and APVO

An AVO or Apprehended Domestic Violence Order ("ADVO") is an order made by the local court for a person’s protection and sets out restrictions on the other person’s behaviour whom you may be in a relationship with, live with, or are related to. The order refers to this individual as a person with whom you have a “domestic relationship”.[iii]

Another form of an AVO is an Apprehended Personal Violence Order (“APVO”).[iv].  This is an order where the people involved are not related or do not have a domestic or intimate relationship, such as neighbours, or where a person is being stalked, intimidated, harassed, or threatened by someone. You can also apply to the Local Court for an APVO yourself, without seeking the help of the police. These are known as “private APVOs”.

 

AVO and APVO orders

AVOs will have “standard orders” and “additional orders” which vary depending on the circumstances of the case. The three standard orders that will always be included in an AVO are that a person must not:

 

  1. Assault, molest, harass, threaten, or interfere with the protected person;

  2. Intimidate the protected person; and

  3. Stalk the protected person.

 

Anyone in a domestic relationship with the protected person can also be protected by these conditions. This may include your children or other family members that live with you.

Additional orders that can be included in an AVO are that a person must not:

 

  1. Approach the protected person within a certain distance;

  2. Approach or enter places where the protected person may live or work;

  3. Approach the protected person or places where the protected person may be after drinking alcohol or taking illegal drugs; and

  4. Damage property belonging to the protected person.

 

There are free legal advice services that you can contact if you are unable to afford a solicitor. The Women’s Domestic Violence Court Advocacy Services can assist and most cities have a free legal service. In Sydney, the Inner City Legal Centre’s Safe Relationships Project may be able to help. The police also have Domestic Violence Liaison Officers (known as DVLOs) to assist victims of domestic violence.

 

Family court violence orders

The Family Court and Federal Circuit Court can also make protection orders, similar to an AVO. However, if a Family Court Protection Order is breached, then the protected person has to make an application to the court setting out the breach and evidence of the breach. This is known as a Contravention Application.

If you have children, then your children may be included on the order to protect them.

 

Consequences of an AVO 

Once an AVO is in place, it may be difficult to continue a normal relationship with the person against whom the AVO is made. The AVO may specify you are not to have any contact with or be in the same house with the protected person. If an AVO is made against you by your partner, then your partner may be unable to resume your normal relationship for fear you may contact the police if you have a disagreement. This is because it may be considered a criminal offence if your partner intimidates you.

 

It is often best to permanently break contact with the person whom the AVO order is made for or against, unless you have children together or there is another reason you have to be in touch.

 

Basis for an AVO

The “burden of proof” as it is known for an AVO to be made is on the “balance of probabilities”. This means that it is more probable than not that the incident that is the subject of the AVO actually occurred and that the protected person has reasonable grounds to fear that you may harass, stalk, intimidate, or hurt them. This is a lesser burden than the standard for criminal matters, which is “beyond reasonable doubt”. That translates into an easier case to prove.

 

The process

If the court does not believe the person making the complaint, finds that the complaint is not serious enough, or judges that the fears held by the protected person are not reasonable, then the AVO may be denied. In my experience, however, most Courts now err on the side of caution and will make an AVO, at least on an interim basis, until there can be a final hearing and all the evidence put before the court.

If you don’t have enough money to defend an AVO, you can consent to the AVO on a “without admissions” basis for a specific period of time. This means that the court notes on the record that you will agree to the terms of the AVO, but that you don’t admit any wrongdoing.[v] You may also agree with the complaint and the terms of the AVO and agree for a final order to be made.

Before you make any decision with respect to an AVO, you should seek legal advice. An AVO can have serious consequences on your employment and parenting rights in Family Court proceedings.

 

Aksing for an AVO to be withdrawn

If you want to ask the police to withdraw an AVO made against you, then you need to write a letter, referred to lawyers and police as “representations” setting out the reasons why the AVO should be withdrawn.

This letter should be sent to the local area commander of the police station where the AVO application was made. The police officer who made the application for the AVO (known as the “Prosecutor” or “Officer in Charge”) should be copied in on the letter. It usually takes the police around 4 to 6 weeks to consider any representations. The police response to your representations will be sent to you and the police prosecutor who is handling that matter in the court that day.

 

Breach of an AVO

An AVO and APVO is not a criminal charge, though it will appear on a person’s criminal record in the same way as a driving offence would. It would only become a criminal offence if the AVO is breached. Breaching an AVO carries a penalty of up to two years in jail and/or a large fine.[vi]

Once an AVO is made, it is very rarely withdrawn by the police, as they now have a very strict approach to domestic violence of any kind and guidelines which police prosecutors must follow.

 

AVO's and your job

Because an AVO is not a criminal conviction, people often believe that an AVO will not affect their employment prospects. This is not necessarily true.

If you work with children and are subject to a “working with children check”, then a final AVO which has been made by the court and includes a child, will appear on a “working with children check”. This means that your current job or future employment prospects may be jeopardised.

A person who has had an AVO made against them cannot have a firearms license during the period the AVO is in force and for 10 years after it has ceased.[vii] For those who work in the security industry or the police force, then your employment may be at risk.

 

AVO's and the Family Court

If you are in the Family Court for parenting proceedings, then the Judge will consider any AVO and this may impact whether both parents have “shared parental responsibility”. If there has been domestic violence in your relationship and you have children, then the court may not apply the general principle of shared parental responsibility and one parent may be awarded “sole parental responsibility”.

To file an Initiating Application in the Family Court, you are required to obtain a s 60I certificate from a Family Law Dispute Resolution Practitioner (known as “mediation” prior to filing in the Court). If there has been domestic violence, then usually you don’t have to obtain a s 60I certificate before filing an Initiating Application.

When looking at property disputes in the Family Court and the division of the parties’ assets, if there has been ongoing and serious domestic violence throughout the relationship, then the court may make an adjustment in terms of who receives what percentage of the pool of assets.

In criminal matters, a lesbian de facto partner, parent, or child of a defendant can object to giving evidence as a witness for the prosecution.[viii]

 

Summary of Main Points:

 

  1. If your partner assaults you, has damaged your property, or you fear violence, you can make a complaint to the police who can apply for an Apprehended Domestic Violence Order (“AVO”) on your behalf.

  2. Another form of an AVO is an Apprehended Personal Violence Order (“APVO”). This is an order where the people involved are not related or do not have a domestic or intimate relationship, such as neighbours, or where a person is being stalked, intimidated, harassed, or threatened by someone.

  3. It is easier to get an AVO than it is to convict somebody of a crime; it is a lower burden of proof.

  4. Although AVOs are not put on one’s criminal record, they can interfere with employment, custody, or property distribution.

 

 

Footnotes

[i] Kontominas B, “Domestic violence a ‘silent epidemic’ in gay relationships”, May 2015, The Sydney Morning Herald, viewed 4 October 2016, http://www.smh.com.au/nsw/domestic-violence-a-silent-epidemic-in-gay-relationships-20150415-1mm4hg.html

[ii] Pt 4 Crimes (Domestic and Personal Violence) Act 2007 (NSW)

[iii] s 5 Crimes (Domestic and Personal Violence) Act 2007 (NSW)

[iv] Pt 5 Crimes (Domestic and Personal Violence) Act 2007 (NSW)

[v] s 78(2) Crimes (Domestic and Personal Violence) Act 2007 (NSW)

[vi] s 14 Crimes (Domestic and Personal Violence) Act 2007 (NSW)

[vii] ss 22, 23 and 24 Firearms Act 1996 (NSW)

[viii] s 18 Evidence Act 1995 (NSW) and (Cth)

 

Note to readers: This information is intended as a guide to the law and should not be used as a substitute for legal advice. While every effort has been made to ensure that the information contained here is as up to date and accurate as possible, the law is complex and constantly changing (particularly relating to same-sex parenting) and readers are advised to seek legal advice in relation to their situation.

If you need legal advice, please contact Nicole Evans from Nicole Evans Lawyers at nevans@nelawyers.com.au.

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© 2019 by Lesbians & The Law