Apprehended Domestic Violence Orders (ADVOs) are swamping the NSW Local Court system.

An ADVO is a court order that aims to protect a person in need of protection (PINOP) from another person. It is a criminal offence to breach an order.

An ADVO can protect a person from: violence or threats of violence, stalking, intimidation, harassment, and property damage or threatened damage.

In 2020, there were 33830 final ADVOs granted by the NSW Courts, according to the Bureau of Crime Statistics and Research (BOSCAR). This was up from 28812 in 2016, an increase of 17 per cent. This figure does not factor in the number of ADVOs which were not granted.

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 been tracking steadily upwards since 2016.

“ADVOs are overwhelming the NSW Local Court system and a new way to deal with these matters has to be found,” Goldman and Co Lawyers’ head of criminal division, Mr Mathew Nott, said.

“The delays in contested matters are an affront to the administration justice and to the rights of the people who stand accused of domestic violence.

“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. The cost can run into thousands of dollars.

“We have one client at Liverpool who has been waiting more than 20 months to have her matter resolved, through no fault of her own.

“Another client is still living with the pressure and will wait 15 months until she is heard at Bankstown.”

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 the system is being manipulated in some instances.

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 involving parental custody on foot.

Courts are beset by COVID backlogs, so the delays give the interim ADVOs keep the orders enforceable for lengthy periods even though they may eventually be thrown out.

Even though an ADVO is a civil matter, they are dealt with in the criminal jurisdiction of the NSW Courts.

Mr Nott said one of the issues to resolve was the hardening of police policy which has resulted in a default refusal to negotiate the nature of or the facts underpinning them.

“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.”

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), 5565 young men were the Person(s) in Need of Protection (PINOP). In the same period, 6385 young women were the PINOPs.

The number of female victims was almost double that of male victims with 34453 women being protected by AVOs compared to 17709 men.

In 2020 in NSW, the most AVOs, 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 8898 beings subject to orders in the reporting period. Females in the same age range were also the highest offending citizens with 2570 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 to two years and new provisions allow the court to make an ADVO for an indefinite period.
There are also strategic advantages often used PINOP when police make the application for an ADVO.

The PINOP can reach out and make contact with the person restrained – no crime - to entice the person restrained to reply which constitutes a breach, then denounce that person for breach to the police.

The police will not withdraw an ADVO, as a rule.

The police will, depending upon the officer in charge, will take the defendant’s representations to the victim to consider. This should not be discretionary and should be evidenced.

If you have to deal with an ADVO, contact mathew@goldman-lawyers.com for a free consultation.

In Osferatu [2015] FamCAFC 177 (15 September 2015), the husband appealed an injunction that restrained Barkus Doolan from acting for him, where a solicitor (“Mr. F”) joined that firm having previously worked for the wife’s solicitors, Watts McCray.

It was common ground that Mr. F did not have any direct dealings with the wife whilst he was a member of the firm instructed by her. Furthermore, upon joining Barksu Doolan, Mr. F had made an undertaking to the wife that he would not speak, disclose or convey any information he may have had concerning the wife to anyone at Barkus Doolan nor involve himself in the wife’s matter.

In February 2015, the husband filed an Application in a Case applying for the case to be relisted. An e-mail from the wife has stated that she had ‘no issue’ with the husband re-engaging Barkus Doolan as his solicitor. However, upon doing so, the wife objected and filed an Application in a Case seeking an injunction restraining the firm from acting on the husband’s behalf.

Court’s Reasoning

The court stated that there are three established categories in which a solicitor may be restrained from acting against their client or former client:

1. Breach of confidence
2. Breach of fiduciary duty
3. Inherent jurisdiction of a court over its officers and to control its process.

The category that concerned the court, in this case, was number one, ‘breach of confidence,’ specifically the risk of the misuse of confidential information.

Frederico J in Thevenaz & Thevenaz (1986) FLC 91-748 explained the manner in which a client’s confidential information is to be protected in family law proceedings which were adopted by the court:

‘A practitioner who wishes to cease acting for one party and continue to act for the other party will be restrained from doing so by the court if there is any evidence that confidential communications have been made to him by the party for whom he is ceasing to act. In such a case the court will not weigh conflicting evidence as to confidence. It will act upon the evidence of the client who swears that he has made the confidential communication’.

Furthermore, Lindenmayer J in Stewart & Stewart (unreported, Family Court of Australia, Lindenmayer J, 17 April 1997) said:

‘… All that is necessary is that the wife swears that she has conveyed confidential information to the solicitors and that she believes, not unreasonably, that that information may be used against her, or at least to her disadvantage, in these current proceedings…’

The three stages that need to be considered, as Goldberg J said in PhotoCure ASA v Queen’s University at Kingston [2002] FCA 905:

1. Whether the firm is in possession of information which is confidential to the former client;
2. Whether the information is, or may be, relevant to a matter in which the firm is proposing to act for another party with an interest adverse to the former client;
3. Whether there is any risk that the information will come into the possession of those persons in the firm working for the other party.

The burden of establishing the first two propositions is upon the former client to establish.

The third proposition is for the firm to establish once the first two propositions have been established. As such the law requires the applicant, the wife, to seek to restrain a solicitor from acting to establish the confidential information and risk of the misuse of that information in the circumstances.

In the current scenario, the wife never spoke to or provided instructions to Mr. F. Furthermore, there was no capable evidence to support the trial judge’s findings that Mr. F engaged in the detailed discussion of the wife’s case. Mr. F left Watts McCray in February 2012. The wife should have identified the nature of the information received or likely to have been received by Mr. F between 24 June 2011 and February 2012 that is not, or could now be, relevant to current proceedings. The wife did not do so but merely stated that any information at all received by Mr. F could have been relevant.

As such, it was held that the trial judge erred in not taking such matters into account. Furthermore, the court below erred for giving no reasons as to why the wife’s email waiving the objection did not carry any significant weight.

The appeal was allowed, the injunction by the wife was set aside and the wife was ordered to pay the husband’s cost.

The case of Franklin v Ennis [2015] FCCA 2099 (6 August 2015) was an application to the Federal Circuit Court of Australia for settlement of financial matters between an estranged de facto couple.  The Respondent claimed that the couple had entered into a cohabitation agreement under state legislation in 1997.  She claimed this estopped property settlement matters under the agreement from being heard by the Court.

The Court had to determine if the cohabitation agreement was valid.  If the agreement was valid, the court then had to determine if it would preclude the Applicant from bringing de facto property settlement proceedings under Part VIIIAB of the Family Law Act 1975 (Cth) (the “Act”).

Background

At the time of the hearing, the male Applicant was aged 70 years of age.  The female Respondent was aged 61 years of age.  They had commenced their de facto relationship together in 1995.  At this time the Applicant moved into the Respondent’s home and remained there for the duration of the relationship.  The couple separated sometime between October and December 2013.

The Respondent claimed that in May 1997 the couple had entered into a cohabitation agreement under the Property (Relationships) Act 1984 (NSW).  The effect of the terms in the agreement was that upon separation all property in each party’s name is retained by that party and all joint assets are divided equally between the parties.

While the Applicant submitted his signed cohabitation agreement to the Court the Respondent could not find her signed copy of the agreement.

De Facto Relationships and the Family Law Act 1975

Prior to 1 March 2009 de facto relationships involving disputes over property and financial matters were governed by state and territory legislation.  By a referral of powers, most states and territories referred de facto powers to the Commonwealth Government (the only not referring state is now Western Australia).  The Commonwealth Government passed the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008.  This allowed de facto disputes involving property and financial matters to be resolved under the Act.

Under Schedule 1, section 88 of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 de facto agreements made before 1 March 2009 under a preserved law of a state become Part VIIIAB financial agreements under the Act.  However, any agreement must meet the requirements of the preserved state legislation.

Was the Cohabitation Agreement Valid?

As the cohabitation agreement was made in 1997 it had to meet the requirements of section 47 of the Property (Relationships) Act 1984 (NSW).  If it was valid under this legislation the agreement would become a section 90UC agreement under the Act.  This would prevent the Court from making an order against the terms of the agreement.

Section 47(1) of the Property (Relationships) Act 1984 (NSW) requires that an agreement:

1. be in writing;
2. signed by the party against whom the agreement is being enforced; and
3. that the party who seeks the protection of the agreement has a valid certificate of independent legal advice signed by a solicitor.

The Respondent was able to provide through the Applicant a written and signed copy of the cohabitation agreement.  However, the Respondent could not produce a certificate of independent legal advice.

To find the agreement enforceable the Court had to be satisfied with the Respondent’s oral evidence that she had a certificate of independent legal advice.  However, inconsistencies were found in the Respondent’s affidavits referring to her alleged copy of the cohabitation agreement.  The Court was not satisfied that the Respondent’s certificate of independent legal advice actually existed.  As a result, the cohabitation agreement was not binding on the Parties.

Conclusion

In this case the Applicant and Respondent were in a de facto relationship.  The Respondent attempted to stop the Applicant from bringing a property settlement claim against her by relying on a cohabitation agreement.

The cohabitation agreement was entered into under state legislation before de facto relationships were governed by the Family Law Act 1975 (Cth).  As a result, the agreement had to meet state legislation requirements.  While the Respondent met most requirements including providing a written agreement signed by the other party, she could not provide a certificate of independent legal advice.  The Court was not satisfied that one existed and as a result, the agreement was unenforceable.

This case shows the importance of ensuring financial agreements meet strict legislative requirements.  It shows that those entering into financial agreements must be able to fulfill the evidentiary burden of proving that a valid agreement exists.  This requirement continues for the life of an agreement.