Introduction

Recent legal reforms in New South Wales have introduced significant changes to how breaches of Apprehended Domestic Violence Orders (ADVOs) and Serious Domestic Abuse Prevention Orders (SDAPOs) are addressed. These reforms aim to enhance protections for victim-survivors of domestic violence while imposing stricter penalties for offenders. The new laws target intentional and repeated breaches of ADVOs, which can escalate risks for victims, and introduce a new civil order scheme to monitor high-risk offenders.

This article provides an overview of the new aggravated offences for breaching ADVOs, explains the role and implications of SDAPOs, and discusses the broader legislative changes aimed at strengthening domestic violence protections in NSW. By understanding these reforms, readers can better navigate the legal landscape and appreciate the importance of these changes in safeguarding vulnerable individuals.

Overview of New Breach of ADVO Offences for NSW Domestic Violence

The new laws in New South Wales introduce two aggravated offences for breaching an Apprehended Domestic Violence Order (ADVO), targeting intentional and repeated breaches that endanger victim-survivors. These reforms aim to address the escalating risks posed by such violations.

This first offence involves intentionally breaching an ADVO with the intent to cause physical or mental harm to the protected person or instil fear. Under section 14(1A) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the prosecution must prove that the breach was intentional and intended to cause harm or fear.

The maximum penalty for this offence is 3 years’ imprisonment and/or an $11,000 fine.

Key elements of this offence include:

• The breach must be intentional
• The intent to cause harm or fear must be proven
• The offence is a specific intent crime, allowing defences like self-induced intoxication under certain conditions

Persistently Breaching an ADVO Within a 28-Day Period

This second offence targets repeated breaches of an ADVO, defined as three or more breaches within 28 days. Under section 14(1C), the prosecution must demonstrate that a reasonable person would consider the conduct likely to cause harm or fear.

The maximum penalty for this offence is significantly higher at 5 years’ imprisonment and/or a $16,500 fine.

Key elements of this offence include:

• At least three breaches within a 28-day period
• The conduct must be likely to cause harm or fear
• The offence reflects a clear disregard for the ADVO conditions

These new offences complement the existing breach offence, which carries a maximum penalty of 2 years’ imprisonment and/or a $5,500 fine. Together, they establish a tiered approach to addressing ADVO breaches based on severity and intent.

Key Aspects of Serious Domestic Abuse Prevention Orders in New South Wales

Definition & Purpose of an SDAPO

A Serious Domestic Abuse Prevention Order (SDAPO) is a civil, court-issued order designed to protect individuals from domestic abuse. It applies to any person aged 18 or older who has:

• Been involved in serious domestic abuse activity, or
• Multiple domestic violence convictions.

The primary purpose of an SDAPO is to prevent the respondent from engaging in domestic abuse against:

• Family members,
• Former or current intimate partners, and
• Potential future intimate partners.

Importantly, unlike an Apprehended Domestic Violence Order (ADVO), an SDAPO can also protect anyone not currently in a domestic relationship but who may nevertheless be at risk of future abuse.

To achieve these protections, the court may impose conditions it considers appropriate, such as:

• Restrictions on contact,
• Reporting requirements, or
• Limitations on social media use.

Breaching an SDAPO is a criminal offence, carrying a maximum penalty of five years’ imprisonment and/or a fine of up to $33,000.

Eligibility Criteria and Legal Basis for Issuance

An SDAPO can be issued only if all of the following criteria are met:

1. Age requirement: The person against whom the order is sought must be at least 18 years old.
2. Domestic violence history: Within the past ten years, the person must have either:
   • Been convicted of two or more domestic violence offences carrying a maximum penalty of seven years’ imprisonment or more, or
   • Been involved in serious domestic abuse activity, including being charged with a serious domestic violence offence (regardless of whether the charge was withdrawn, dismissed, or quashed on appeal).
3. Risk of harm: There must be reasonable grounds to believe that making the order will protect a family member, former or current intimate partner, or a person in a domestic relationship with an intimate partner from domestic abuse.

Applications for an SDAPO may be made by the Commissioner of Police or the Director of Public Prosecutions (DPP). In deciding whether to grant the order, the court will consider:

• The views of family members, former or current intimate partners, and any person in a domestic relationship with the respondent, and
• Hearsay evidence, provided it is relevant.

Operation & Conditions of Serious Domestic Abuse Prevention Orders

Conditions & Restrictions Imposed by an SDAPO

An SDAPO can impose various conditions and restrictions, all designed to protect family members, current or former intimate partners, and potential future partners. Common conditions include:

• Reporting requirements: The person may be required to regularly report to a police station.
• Contact restrictions: Prohibitions on contacting or approaching protected persons.
• Social media limitations: Restrictions on using social media, including dating apps.
• Disclosure obligations: Requirements to notify police of new intimate relationships or changes in address.

Together, these measures aim to monitor high-risk individuals and prevent potential abuse.

Limitations on Provisions Within an SDAPO

However, while SDAPOs can impose various restrictions, there are legal limitations on what they may include. Specifically, an SDAPO cannot:

• Require oral questioning: The person cannot be compelled to answer questions orally.
• Disclose confidential information: Information protected by legal privilege or confidentiality must remain undisclosed.
• Breach banking confidentiality: Restrictions on disclosing banking information cannot be imposed unless consent is given.

These limitations ensure that the order does not infringe on legal rights and privileges.

Duration & Processes for Variation or Revocation

Key processes and timelines include:

• Duration: Typically up to five years from the date it is served; the court can issue subsequent orders if necessary.
• Variation or revocation: An application must be made to the court that issued the order, and leave may be granted if there has been a substantial change in circumstances.
• Appeals: Appeals against an SDAPO decision can be made to a higher court, with the order staying in effect until the appeal is resolved.

These processes ensure that the order remains effective while allowing for necessary adjustments based on changing circumstances.

Defences & Legal Considerations for ADVO Breach Offences and SDAPOs

Legal Defences for Breaching an ADVO

When facing charges for breaching an Apprehended Domestic Violence Order (ADVO), several legal defences may be available. These defences can potentially lead to an acquittal or a reduction in charges.

Common defences include:

• Self-induced intoxication: Applies if the person was incapable of forming the specific intent to cause harm due to self-induced intoxication, provided the intoxication was not premeditated to facilitate the offence.
• Necessity or duress: Excuses the breach if it was necessary to prevent harm to the person or others, or if it was committed under duress.
• Mistake of fact: Where the person reasonably believed that the ADVO had been revoked or modified.

For any of these defences to succeed, the prosecution must prove beyond a reasonable doubt that the defence does not apply in the specific circumstances of the case.

Appeal Options & Variation Opportunities for SDAPOs

A Serious Domestic Abuse Prevention Order (SDAPO) can be appealed or varied under certain conditions. Key considerations include:

• Appeals
  • If a SDAPO is made in the Local Court, an appeal lies to the Supreme Court.
  • If it was made in the Supreme Court, the appeal proceeds to the Court of Appeal.
  • Appeals must be filed within 28 days of the decision, although extensions may be granted with court approval.
• Stay of the Order
  During the appeal process, the court may stay (suspend) the operation of the SDAPO if it is deemed safe to do so, balancing the need to prevent domestic abuse.
• Variation or Revocation
  The issuing court can vary or revoke the SDAPO if there has been a substantial change in circumstances. This involves applying to the court, which will consider the views of all relevant parties before making a decision.

These legal avenues provide a framework for addressing concerns related to SDAPOs while ensuring the safety and protection of those at risk.

Other Legislative Changes Enhancing Domestic Violence Protections

Expanded Definition of Stalking Through Technology

The definition of stalking in New South Wales has been expanded to explicitly include the monitoring or tracking of a person’s activities, communications, or movements through technology. This change addresses the growing concern of technology-facilitated stalking and provides greater protection for victim-survivors.

The updated definition now covers various forms of tech-related stalking, including:

• Using GPS trackers to monitor a person’s location
• Tracking someone’s online activities without consent
• Monitoring online accounts
• Using other digital means to track someone without their consent

By broadening the definition, the law reflects modern realities of stalking and aims to prevent tech-related harassment and intimidation. This ensures that victim-survivors have stronger legal recourse against such invasive behaviours.

Electronic Issuance of Provisional AVOs

Another significant change is the introduction of electronic issuance of provisional Apprehended Domestic Violence Orders (AVOs). This reform offers several benefits:

• Police can now issue provisional AVOs electronically when all parties consent
• The need for a physical copy to be printed is eliminated
• The process of providing legal protection to victim-survivors is expedited

This change is particularly beneficial in urgent situations, as it allows for faster implementation of protective measures. The electronic process reduces administrative delays, ensuring that victim-survivors can receive timely protection without requiring in-person police station visits. This aligns with the broader goal of enhancing efficiency and accessibility in domestic violence legal processes.

Amendments to the Births Deaths & Marriages Act 1995 (NSW) Allowing Name Changes

The Births, Deaths and Marriages Act 1995 (NSW) has been amended to permit a sole parent with an appropriate court order to change their child’s name. This change is designed to support protective measures for vulnerable individuals, particularly in cases where a name change is necessary for safety or privacy reasons.

The amendment allows a sole parent to change their child’s name without the consent of the other parent, provided they have a court order. This can be crucial in situations where the child’s safety is at risk, such as in cases of domestic violence or stalking. By facilitating name changes, the law aims to provide an additional layer of protection and anonymity for victim-survivors and their children.

Conclusion

The recent legislative reforms in New South Wales have introduced significant changes to how breaches of Apprehended Domestic Violence Orders (ADVOs) and Serious Domestic Abuse Prevention Orders (SDAPOs) are addressed. These reforms include new aggravated offences for intentional and repeated breaches of ADVOs, as well as the introduction of a new civil order scheme to monitor high-risk offenders. The reforms aim to enhance protections for victim-survivors of domestic violence while imposing stricter penalties for offenders.

If you or someone you know is affected by these changes, it is crucial to seek legal advice from experienced criminal lawyers. At Daoud Legal, our team of criminal law experts in Sydney is here to provide trusted expertise and support tailored to your needs. Contact us today to discuss your situation and ensure you receive the guidance you need to navigate these complex legal changes.

Frequently Asked Questions