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
paperwork".
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.