Working Group on Domestic Violence
Domestic Violence Legal Scenarios
Scenario 1: Police application, Blacktown local court
The Police are called to an incident in Blacktown. A neighbour has reported shouting and the sound of furniture smashing.
The police arrive and interview the occupants, a male and a female, both of whom are Sudanese (an interpreter is arranged through the Telephone Interpreter Service). Two children aged 8 and 10 are present. The perpetrator (male) is removed from the premises and conveyed to the local police station (Blacktown). The perpetrator is interviewed by police and subsequently charged with assault. An application is made for a provisional apprehended domestic violence order (ADVO) which is granted. The ADVO and the charge are to be mentioned at Blacktown local court the following week.
The woman fears deportation/loss of visa as a result of these proceedings as her spouse has threatened to use other information about potential breaches such as non-compliance with conditions of a student visa.
Possible pathways
At the police station — defendant
- The person in custody would be put through to LawAccess NSW which is available from 9 a.m. to 5.00 p.m. Monday to Friday, excluding public holidays. The call would be transferred to a LawAccess lawyer because calls from persons in police custody are treated as priority calls.
- If the person is Aboriginal or a juvenile, the call would be put through instead to the Aboriginal Legal Service (24-hour service) or the Legal Aid Youth Hotline (9.00 a.m. to midnight weekdays).
Before Court and at Court — Victim
- Police seek the permission of the victim to make a direct referral to the North West Sydney Women’s Domestic Violence Court Advocacy Service (WDVCAS) using the DV pass or Yellow card program. The victim’s details are passed on to the WDVCAS.
- WDVCAS would contact the victim of domestic violence prior to the court day to ascertain her needs in relation to the ADVO and to ensure appropriate conditions are sought when the matter is mentioned. They will also talk to her about her other welfare and legal needs and may make direct referrals on her behalf e.g. to Family Support, Housing NSW. However, they won’t be doing extensive case work.
- The WDVCAS will open a file for the woman and record the details of all contacts made. They will explain the court process to the woman and where she should go on arrival and be available if the woman needs to clarify anything before court.
- If the woman expresses a desire to remain at home, the WDVCAS worker will make a referral to the Staying Home Leaving Violence Service (SHLVS). This program targets people who stay at home but are separated and have ADVOS containing exclusion orders. This service will provide risk assessment and management, casework and advocacy to address housing issues, financial difficulties, legal issues and facilitate access to appropriate services. A safety plan is developed, including the provision of security equipment for the home.
At Court — Victim
- The woman arrives and is directed to the safe room by the Sherriff.
- When she enters the room the WDVCAS Coordinator will take her name and ensure she is supported by assigning her a seconded worker (workers released from their own agencies to assist at court).
- The worker will ascertain her needs and obtain her most up to date instructions in relation to the conditions of her ADVO.
- The Police Domestic Violence Liaison Officer (DVLO) will speak to the woman in the safe room before locating the defendant to negotiate the ADVO.
- If the woman has other legal needs (eg family law, migration law) the woman will be referred to the Domestic Violence Solicitor Scheme (DVSS) solicitor.
- The DVSS solicitor will provide preliminary legal advice and refer the woman to other legal services for additional advice such as a Legal Aid NSW Family Law or Civil Law clinic or a community legal centre.
- The DVLO may need to speak with the woman again in relation to the conditions on the ADVO after the DVLO has spoken with the defendant or his solicitor.
- The DVLO escorts the woman into the court room when it is time for her matter to be mentioned.
- Generally police will arrange for interpreters to be present at the initial mention at local courts.
And what if the victim is in a same sex relationship...
- NSW Police: There is a Gay/Lesbian Liaison Office (GLLO) in most metropolitan areas
- The Safe Relationships Project will assist people in same sex relationships, transgender and transsexual people, and intersex people to apply for ADVOS and access legal representation as well as provide support, advocacy, referrals and information. The SRP can provide face to face support in Sydney, and phone support outside of Sydney.
Links to family law proceedings:
- If family law proceedings are in train, and the police prosecutor is made aware of these, an application can be made to the magistrate to vary family law orders on a temporary basis.
Scenario 2: Private application in Mungindi court (in North West NSW)
A woman goes to her local GP to say that she is afraid of her husband, and he won’t let her leave the house. She does not want to go to the police. She has poor literacy. The GP rings the DoCS Domestic Violence Line who advise her to call the Women’s Legal Services Domestic Violence Advocacy Service for advice about the legal aspects of her problem.
Possible pathways
Before Court
- The Women’s Legal Services Domestic Violence Advice Line advises the woman about her options over the phone and the woman says that she would like to take out an ADVO but does not want to go to the police because she has criminal matters outstanding. The advice line tells her to make an appointment with the chamber service at the Mungindi local court who will help her to make an application for an ADVO.
- The Chamber Service assists the woman by filling out the ADVO application with relevant details about her situation and discusses what orders she is seeking. They also tell her when she will need to be in court and write the contact details of the North West WDVCAS on a WDVCAS brochure and advise her to call them before the court day.
- The WDVCAS will speak to the victim about the conditions of the order; ascertain if there are other needs; and assist with referral to a lawyer if necessary.
At Court
- Because the woman is taking out a private application for an ADVO, she will not be represented in court. The WDVCAS coordinator talks to the police prosecutor, who has the discretion to represent applicants in private applications depending on their availability.
- If the husband won’t consent to an interim order and the matter is set down for a defended hearing, WDVCAS will tell the woman that she may be eligible to get legal aid so that a solicitor can represent her at the defended hearing.
- WDVCAS contact a local solicitor on her behalf to ascertain if they are available for the hearing. WDVCAS work with the local solicitor to fill out the legal aid application form.
- WDVCAS send the form to the Grants Section of Legal Aid NSW Head Office for consideration.
- Legal aid is granted and the woman is advised.
And if there is no WDVCAS service...
WDVCAS services cover 108 courts in NSW but there are still some rural courts that do not have a WDVCAS e.g. Dungog.
At Court
- If the husband won’t consent to an interim order and the matter is set down for a defended hearing, local court staff will tell the woman that she may be eligible to get legal aid so that a solicitor can represent her at the defended hearing. They give the woman a legal aid application form and advise her to call LawAccess NSW.
- LawAccess NSW can send out Legal Aid NSW forms, assist clients with filling out legal aid applications over the phone and make referrals to private solicitors through the Law Society of NSW Pro Bono Scheme. If LawAccess are not able to assist because the woman has poor literacy and needs additional assistance they will make a warm transfer to Women’s Legal Services Domestic Violence Advice Line.
- The Women’s Legal Services Domestic Violence Advice Line will try to arrange representation for people eligible for legal aid, in both metropolitan and rural areas, either by calling on their behalf or direct referral, depending on their capacity.
- A local solicitor is located who checks that the woman is eligible under the means test. They apply for a grant of aid.
- Legal aid is granted and the woman is advised.
Who can assist with filling out legal aid applications?
- LawAccess NSW can send out Legal Aid NSW forms, assist clients with filling out legal aid applications over the phone and make referrals to private solicitors through the Law Society of NSW solicitor referral scheme. If the woman needs additional assistance LawAccess NSW can transfer the call to Women’s Legal Services Domestic Violence Advice Line.
- Women’s Legal Services Domestic Violence Advice Line will try to arrange representation for people eligible for legal aid, in both metropolitan and rural areas, either by calling on their behalf or direct referral, depending on their capacity.
- Generalist community legal centres will provide representation depending on capacity. Many regional CLCs will provide advice by phone.
- Legal Aid NSW runs advice clinics (crime, civil and family) which may be able to assist with completing legal aid application forms. LawAccess NSW can provide information about these clinics.
Scenario 3: Private ADVO application for an Aboriginal client in Walgett
An Aboriginal woman in Walgett goes to the Family Violence Prevention Legal Service because she is fearful for the safety of herself and her children. After speaking with the worker, she decides that she wants to take out an ADVO but she doesn’t want to attend the police station.
Possible pathways
Before Court
- The Family Violence Prevention Legal Service (FVPLS) worker provides her with counselling, legal assistance, and referral
- They take her to the Walgett Local Court where the chamber service assists her to fill out an ADVO application
At court
- A solicitor from the Family Violence Prevention Legal Service (based at Women’s Legal Service) visits Walgett during sitting weeks and would be available to provide initial representation in the local court. They would also be able to assist with other legal issues, such as family law, victims compensation and care and protection. If the client was eligible for legal aid, the solicitor would assist to link her up with a Legal Aid NSW family lawyer.
And if there is no Family Violence Prevention Legal Service...
- The victim could call the toll-free number for Warringa Baiya who can provide advice over the phone on a range of issues in relation to domestic violence, including ADVOs, domestic violence offences, family law, police response to reporting domestic violence, and victims compensation. They can also assist with locating legal and non-legal services.
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