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The NSW justice system is at risk of being “gamed”
22nd June 2022: Apprehended Domestic Violence Orders are overwhelming the NSW Local Court system. “A new way to deal with these matters has to be found.” according to Goldman and Co Lawyers’ head of criminal division, Mr Mathew Nott. Mr Nott is a Sydney Criminal Lawyer.
An Apprehended Domestic Violence Order (ADVO) is a court order that aims to protect a person in need of protection (PINOP) from another person. An ADVO can protect a person from: violence or threats of violence, stalking, intimidation, harassment, and property damage or threatened damage.
However significant delays in contested ADVOs are overwhelming the NSW justice system and an affront to the rights of the people who stand accused of such domestic violence criminal offence .
“If you contest an ADVO, as you have the right to do given the reputational and employment impacts, you need to go before the Courts on at least three occasions and maybe more,” Mr Nott said.
“The cost can run into thousands of dollars. We have one client for domestic violence and family law at Liverpool who has been waiting more than 20 months to have her matter resolved, through no fault of her own.”
“Another client will have to wait 15 months until she is heard at Bankstown.”
ADVO’s taking up more court time than ever
In 2020, there were 33,830 final ADVOs granted by the NSW Courts, according to the Bureau of Crime Statistics and Research (BOSCAR). This was up from 28,812 in 2016, an increase of 17%.
This figure does not factor in the number of ADVOs which were not granted but still contested at hearing.
NSW criminal courts finalised 140,644 court appearances in 2020/21, an increase of 20,394 (17%) from the previous year (120,250 in 2019/20).
On these figures, although the reporting periods do not align exactly, ADVO’s represent roughly one quarter of local court matters finalised in that reporting period. The number of ADVOs applied for by police has also been tracking steadily upwards since 2016.
“Legislators have enacted laws to safeguard the vulnerable and police play a key role in applying to the Courts for protective orders, yet there is no doubt that the system is being manipulated in some instances.” Mr Nott said.
“Police and the courts have become potential playthings of savvy “victims” who make complaints by way of a pre-emptive strike, particularly if there are family law proceedings on foot.”
Mr Nott said one of the issues contributing to this current crisis was the hardening of police policy which has resulted in a default refusal to negotiate the nature of or the facts underpinning apprehended violence application the ADVOs.
The police will not withdraw an ADVO, as a rule.
The police will, depending upon the officer in charge, take the defendant’s representations to the victim to consider, however, in Mr Nott’s opinion, this should not be discretionary and should be evidenced.
“There is no doubt that many orders would be consented to if police were prepared to amend the facts or the nature of the orders,” Mr Nott said.
“If police softened their policy position, these matters could be resolved in many cases the first time they were before the courts.”
Who are ADVOs protecting in our community – the PINPO
Male and females under 18 are the people most in need of being protected by ADVOs, according to NSW statistics
In the period October 2020 to September 2021 (the reporting period), 5,565 young men were the Person(s) in Need of Protection (PINOP). In the same period, 6,385 young women were the PINOPs.
The number of female victims was almost double that of male victims with 34,453 women being protected by AVOs compared to 17,709 men.
In 2020 in NSW, the most ADVOs(195) were issued on the Central Coast of NSW, though Broken Hill had the highest per capita rate of offending with 348.2 offences per 100,000 people.
Males aged 30-39 years were most likely to offend, with 8,898 being subject to orders in the reporting period. Females in the same age range were also the highest offending citizens with 2,570 being subject to Orders in the same period.
The most breaches of Orders occurred on the Central Coast.
Amendments to legislation now means the default duration of ADVOs is now two years and new provisions allow the court to make an ADVO for an indefinite period.
“We have seen instances where a strategic advantage is afforded to the PINOP when police make the application for an ADVO” according to Goldman & Co Lawyers’ head of criminal division, Mr Mathew Nott.
“The PINOP can reach out and make contact with the person restrained – no crime – to entice the person restrained to reply which then constitutes a breach. Then the PINPO denounces that person for breach to the police and they can be charged” says Mr Nott.