WHAT IS A SERIOUS DOMESTIC ABUSE PREVENTION ORDER?
On 24 September 2024, the Crimes (Domestic ad Personal Violence) and Other Legislation Amendment Bill 2024 was passed by both Houses of the New South Wales Parliament, amending the Crimes (Domestic and Personal Violence) Act 2007 (‘the Act’) to, among other things, introduce Serious Domestic Abuse Prevention Orders. This has been done to target domestic violence.
Minister for the Prevention of Domestic Violence and Sexual Assault Jodie Harrison said:
“Too many lives have been lost to domestic and family violence, and these new laws are a vital step to improve the safety and security of victim-survivors.
“The new laws complement other services we are delivering across the state, including homelessness and crisis support, early intervention and primary prevention programs, and activities to build and strengthen the sector.
“We want to ensure that any person fleeing domestic and family violence has a safe pathway to healing and recovery.”
SERIOUS DOMESTIC ABUSE PREVENTION ORDERS – DOMESTIC VIOLENCE
The provisions that relate to Serious Domestic Abuse Prevention Orders (or ‘SDAPOs’) are contained in a new Part 10A of the Act, which comprises sections 87A to 87K.
Power to make a SDAPO for Domestic Violence?
Section 87B(1) of the Act empowers an appropriate court on the application of an eligible applicant to make an SDAPO against a person if:
- The person is at least 18 years old,
- The court is satisfied that, during the previous 10 years, the person, when at least 16 years of age:
- has been convicted of 2 or more domestic violence offences with a maximum penalty of 7 years imprisonment or more, or
(ii) has been involved in serious domestic abuse activity, and
(c) the court is satisfied there are reasonable grounds to believe that the making of the order would protect a family member of the person, a former, current or potential intimate partner of the person or a person in a domestic relationship with an intimate partner of the person by preventing the person engaging in domestic abuse.
What is the penalty for a breach of a SDAPO?
Breaching an SDAPO carries a maximum penalty of five years’ imprisonment.
What the application must include?
An application for a SDAPO must include:
- The details of any apprehended violence order (AVO) against the person
- The details of any orders made under the Family Law Act 1975 of the applicant is aware.
- Applications alleging serious domestic abuse activity
Section 87B(3) provides that applications for SDAPOs that involve claims of serious domestic abuse activity for which a person has not been convicted, or which were quashed on appeal, must include details of the alleged offence as well as the court in which and date on which the charge was withdrawn, dismissed or quashed.
- Right to attend court and make submissions
Section 87B(5) makes clear that a person who is served with an application for a SDAPO has a right to attend court and make submissions regarding the application.
- Court must consider views of family members and partners
Section 87B(6) requires a court to have regard to the views of family members, former and current intimate partners, and any person who is in an intimate relationship with a person against whom the application for a SDAPO is made when determining whether to grant the application.
What a SDAPO can contain?
Section 87C(1) gives the court broad discretion to:
- prescribe prohibitions, restrictions, requirements and other provisions which the court considers appropriate to prevent the person against whom the order is made to engage in domestic abuse in relation to family members, former, current or potential future intimate partners, and/or persons who are in a domestic relationship with an intimate partner.
- This can include conditions similar to those normally prescribed in apprehended violence orders, such as ‘mandatory AVO conditions’ that the person must not assault, threaten, stalk, harass, intimidate or intentionally or recklessly destroy of damage the property of the said persons, as well as additional conditions such as orders against contacting, approaching or attempting to locate the persons, and orders relating to family and parenting, movement, residence and possessing firearms.
What a SDAPO cannot contain?
However, section 87C(2) prohibits the court from imposing prohibitions, restrictions, requirements and other provisions that would require the person:
- To answer questions or provide information orally,
- To answer questions, or to provide documents or other information, that are subject to client legal privilege,
- To disclose a protected confidence, which is a communication made by a person in the course of a relationship in which the person was acting in a professional capacity, and the person was under an express or implied obligation not to disclose the contents of the communication, whether or not the obligation arose under law or could be inferred from the nature of the relationship between the persons,
- To provide documents or other information held by the person in confidence as part of a banking business, unless the person to whom the confidence is owed has consented, or the order specifically requires the provision or production of the documents or other information concerned, or documents or other information of the kind concerned, or
- To answer questions, or to provide documents or other information, that would result in a disclosure prohibited by a provision of another Act, other than the Evidence Act 1995.
Prohibition on using information disclosed under a SDAPO in other proceedings
Section 87C(3) prohibits any answer, document or other information given by a person in compliance with a SDAPO to be used against the person in any civil or criminal proceedings, other than proceedings for the offence of breaching a SDAPO or one in which the person is compelled to give evidence.
This information cannot be used by authorities in other civil/criminal proceedings.
What is the maximum duration of a SDAPO?
Section 87D provides that the duration of a SDAPO must not exceed 5 years, which commences on the day the person is served.
However, the section makes clear that an application for a second or subsequent SDAPO can be made, which of course has the practical effect of extending that period.
Appeals against SDAPOs/ Varying or revoking a SDAPO?
Section 87F provides that the person who applies for a SDAPO and the person against whom an SDAPO is sought or made has the right to appeal. In the event the decision is made in the Local Court, the appeal is to the Supreme Court. In the event the decision is made in the Supreme Court, the appeal is to the Court of Appeal.
Section 87G empowers a court in which a SDAPO was made to vary or revoke the order at any time on the application of the person who applied for the order, or the person against whom the order was made.
The offence of contravening a SDAPO
Section 87E contains the offence of contravening a SDAPO.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- A SDAPO was in effect against a person,
- The person contravened the SDAPO, and
- The person did so knowingly.
A SDAPO is not in effect unless it has been served on the person.
Legal defences against the charge include self-defence, duress, necessity, mental illness and automatism.
In the event evidence is raised of a legal defence, the onus shifts to the prosecution to prove beyond reasonable doubt that the defence does not apply to the circumstances of the case.
The person is entitled to an acquittal if the prosecution is unable to discharge that onus.
GOING TO COURT?
In you are accused of a domestic violence offence, call Criminal Lawyers Group anytime on 0424 230 074 for expert advice from a senior criminal lawyer. We will provide an initial free consultation and work out a plan of attack in your case to give you the best change of obtaining the best possible outcome in your case. Contact us today!