Violence made to order for lawyers

By High Court correspondent BERNARD LANE

The Australian

29December 1999

COURT orders designed to prevent violence have created a new industry for

lawyers and added to the burden of police and magistrates, according to

Trevor Nyman, a prominent solicitor.

But Mr Nyman said there was no evidence the dramatic growth in apprehended

violence orders had reduced the level of violence.

"There is plenty of anecdotal data that it is either continuing at the same

level or is perhaps increasing," Mr Nyman said in an article in the latest

issue of the NSW Law Society Journal.

Courts in 1987 made 1426 orders; in 1997, there were 23,464.

Mr Nyman, a criminal law practitioner and adjunct professor at Sydney's

University of Technology, gave the AVO system "top marks as a new industry

for lawyers" and "high marks for keeping general duties police doing


NSW magistrates already had a heavy workload, he said.

"Add to this the charged atmosphere that goes hand in hand with apprehended

violence day in every local court, and the stress on our local court bench

is greater than ever before," he said.

Supporters of domestic violence orders say the main problem is not abuse,

but under-use by women still too fearful to seek protection.

In the same law journal issue, Queensland practitioner Michael McMillan

suggested a "cautious increase" in the standard of proof to be satisfied

before a court issues an AVO.

"Many practitioners find quite unsettling the ease with which the standard

of proof can be discharged," he said.

A person who complains of violence or threats has to satisfy the civil

standard – the balance of probabilities.

Mr McMillan said something had to be done about abuse of an AVO, whereby the

complainant – the person supposedly in need of protection – "lures or

encourages" the defendant into a breach.

The defendant might not realise the complainant could not unilaterally waive

the order, he said.

"The defendant is easy prey for a vindictive (complainant) who may well

delight in inviting the (defendant), despite the order, to return to the

shared residence," he said.

"Once the trap is set, it only takes a simple phone call by the

(complainant) to the local police in order to trigger it."

Mr McMillan suggested other states follow the example of Western Australia,

where those lured into a breach can rely on a defence that the complainant

approved the breach.

Breach of an AVO is a serious criminal offence.

In NSW, most concern about abuse of AVOs has focused on so-called "personal"

violence orders, involving neighbours or work colleagues.

The NSW Government is considering a reform that would allow magistrates to

refuse to issue a non-domestic AVO regarded as frivolous or vexatious.

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