Under section 40 of the Crimes (Domestic and Personal Violence) Act 2007, if a person is charged with a domestic violence offence (for example, assault, malicious damage, sexual assault, stalking and intimidation committed by someone with whom the victim was in a domestic relationship), then the court must make an interim AVO for the person against whom the offence was allegedly committed, unless the court is satisfied that an AVO is not required.
Under section 39, if a person pleads guilty or is found guilty of a domestic violence offence, the court must make an AVO for the person against whom the offence was committed unless the court is satisfied that an AVO is not required. An example of this may be if there is an existing AVO.
Rosalita moved to Australia 18 months ago when she married William. They have a three-month-old boy. They live in a rented apartment leased in William’s name. About eight months ago, when Rosalita was four months pregnant, William started to push her around when he got angry. He hit her and slapped her in the face. She can remember having black eyes. Last week he pushed her down on the floor and tried to choke her. She has never told anyone. William always tells her she is not allowed to go out without him and if he is not with her she has to stay home with her son.
One night a couple of months ago, the police came to the apartment. Rosalita thinks the neighbours called them because of the shouting. The police talked to Rosalita but she was too frightened to say anything about William. She also felt she couldn’t get the story out clearly. They spoke to William who said that Rosalita became hysterical when they argued and she shouted at him. The police left.
Last Thursday night, William became enraged because Rosalita could not stop the baby crying. He pushed Rosalita to the floor and held her down with his arm tightly around her face. To try and get him to let go of her, Rosalita bit William’s arm.
On Friday, Rosalita had bruising to her face where he had held her and she went to the Police Station. She was very frightened because she didn’t want William to find out she was there. The police officer took her statements and photos of the bruising and arranged for her to stay at a refuge with her baby.
Later, the same officer rang her at the refuge and said that he had spoken to William and had been shown the bite mark on his arm. He said that William said that Rosalita had become angry at him for being home late, had attacked and bitten him and he had pushed her off to get away. The police officer told Rosalita she was lucky he had spoken to her first otherwise he might have charged her with an assault. Because of the conflicting versions of events the officer said he could not press any charges but that he would continue with an AVO application on her behalf. The officer also said if she needed anything out of the house he could ask for an ancillary property order or, if she felt safe to leave the refuge, he could seek an exclusion order to keep William out of the house. Because the incident happened with the baby at home he would list the baby as an additional protected person but that in any event the baby would be protected under mandatory orders.