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Guidelines

1. Criminal law matters

1.7. Apprehended Violence Orders

1.7.1 What is a domestic relationship?

A ‘domestic relationship' is defined under s 5 of the Crimes (Domestic and Personal Violence) Act 2007

For the purposes of the Legal Aid NSW apprehended domestic violence order policy a person is in a ‘domestic relationship' when:

  • the person is or has been married to the other person
  • the person is or has been in a de facto relationship within the meaning of the Property (Relationships) Act 1984 with the other person
  • the person has or has had an intimate relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature
  • the person is living or has lived as a long term resident* in the same residential facility as the other person
  • the person has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person
  • the person is or has been a relative of the other person, or
  • the person is an Aboriginal person or a Torres Strait Islander, who is or has been part of the extended family of the other person, according to the Indigenous kinship system of the person's culture, or
  • two persons also have a domestic relationship with each other for the purposes of this Policy if they have both had a domestic relationship of a kind set out above with the same person.

*This does not include a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 (NSW) or a detention centre within the meaning of the Children (Detention Centres) Act 1987 (NSW)

1.7.2 Apprehended domestic violence orders

What are exceptional circumstances?

In determining whether there are exceptional circumstances, Legal Aid NSW may consider there are exceptional circumstance where the applicant for legal aid is 'at special disadvantage'.

Definition of 'at special disadvantage' under the ADVO policy

An applicant for aid is at special disadvantage if,

  • the applicant is a child or acting on behalf of a child, or
  • the applicant is a person who has substantial difficulty in dealing with the legal system by reason of:
    • a psychiatric condition
    • a developmental disability
    • an intellectual impairment, or
    • a physical disability

Note: This is intended to be a guidance on how the exceptional circumstances test may be applied and is not exhaustive.

Definition of 'victim of domestic violence' under the ADVO policy

Legal Aid NSW will be satisfied that an applicant for legal aid is a victim of domestic violence if any of the following criteria are satisfied:

  • the application for legal aid is supported by a Domestic Violence Practitioner Scheme solicitor or Women's Domestic Violence Court Advocacy Service co-ordinator, health worker, domestic violence specialist worker, community access worker (funded by the Commonwealth Government), independent advocate for people with disabilities, social worker, tenancy worker (funded by Government), homeless or housing worker (funded by Government) counsellor approved by Victims Services or psychologist, or
  • the applicant for legal aid has previously been an applicant in an ADVO matter, or
  • the applicant for legal aid is currently living in a refuge or in alternative accommodation due to a domestic violence situation, or
  • the applicant for legal aid provides evidence to support their application.

1.7.3 Apprehended personal violence orders

When determining whether there are exceptional circumstances, Legal Aid NSW may consider there are exceptional circumstance if:

  • the applicant for legal aid is a protected person in associated apprehended domestic violence proceedings

or

  • Legal Aid NSW is satisfied the applicant for legal aid is 'at special disadvantage'.

Definition of 'at special disadvantage' under the APVO policy

An applicant for aid is at special disadvantage if,

  • the applicant is a child or acting on behalf of a child, or
  • the applicant is a person who has substantial difficulty in dealing with the legal system by reason of:
    • a psychiatric condition
    • a developmental disability
    • an intellectual impairment, or
    • a physical disability.

Note: This is intended to be guidance on how the exceptional circumstances test may be applied and is not exhaustive.

1.7.4 Definitions for apprehended violence orders

The following are the relevant definitions for the purpose of the Legal Aid NSW AVO policy.

Apprehended domestic violence order proceedings and apprehended personal violence order proceedings include variation or revocation proceedings.

A protected person means the person for whose protection an apprehended violence order is sought or made, or the person whom Legal Aid NSW is satisfied is a victim of domestic violence.

A defendant is a person against whom an apprehended violence order is made or sought.

Associated apprehended domestic violence order proceedings are current proceedings involving the same parties including proceedings concluded within the previous 3 months.

A relative is a relative within the meaning of section s6 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).


Date Last Published: 27/02/2019
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