The client had an AVO taken against him by his ex-wife. He did not oppose the making of the Order and entered into the Order by consent and without admission. One of the conditions was that he was not to approach or contact her by any means whatsoever. The allegation was that one evening she had received a phone call from a blocked number. She claims that she heard the voice of her ex-husband and that he had threatened to kill her. She called the police, and a statement was taken.
Arrest, Local Court charges & potential penalties
The client was arrested, handcuffed and taken into custody. He was charged with contravene AVO pursuant to section 14(1) Crimes (Domestic and Personal Violence) Act 2007 which carries potential penalties of imprisonment for 2 years, a fine of up to $5,500 or both – as well as any other penalty in between as set out in the Crimes (Sentencing Procedure) Act, such as a Community Service Order, Good Behaviour Bond, Intensive Corrections Order, Suspended Sentence etc. After being charged by police, he was issued with a bail court attendance notice and released.
A plea of not guilty was entered and the matter was set down for defended hearing at Bankstown Local Court. It turns out there were current proceedings in the Family Court where the ex-wife/complainant was attempting to go for full custody of their children. Not only would a conviction of our client for the criminal charge give the ex-wife a potential advantage in the Family Court proceedings, but it would also deprive the client of the current shared custody and disadvantage him financially as he would be liable for child support
The alleged victim was cross-examined to demonstrate that she was falsifying allegations in an attempt to receive full custody of the children in current family law proceedings. There is provision in the Family Law Act for persons to deal with alleged ‘domestic violence’. The woman’s evidence was unconvincing. Police failed to obtain call charge records, or any other information from the ex-wife’s phone carrier – which could potentially have demonstrated where the call emanated from.
The magistrate was not satisfied beyond reasonable doubt that the client had made the threatening phone call as there was no corroborative evidence to support the claims of the ‘victim’ that such a call was even made to her in the first place, or that if such a call had been made, that the accused was responsible for it. The matter was accordingly dismissed.
The potential costs of an AVO
It is acknowledged that domestic violence is unacceptable and that the legislation is in place to make the community a safer place to live by affording protection to persons who are at risk of or fear violence.
However, it is all too easy for a person to use the legislation to their own advantage, such as trying to get the upper hand in custody proceedings. A finding of guilt in a contravene AVO matter carries potentially significant penalties including fines and imprisonment, as well as a conviction and criminal record. The court has the power to make orders for an accused person or defendant to move out of premises, abstain from having contact with their children, stay away from certain locations etc. The making of an AVO also disentitles a person to hold a shooters licence, to own or retain possession of weapons, and may affect their ability to obtain of hold certain types of employment.
Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law. Contact us if you require assistance.