Fake domestic violence claims – what are your rights?
Domestic violence is a serious offence and one which should be condemned and punished accordingly. But every day across Australia we see courts throw out domestic violence charges and withdraw Apprehended Violence Orders (AVOs) due to the unreliability of alleged victims, as well as the false, misleading and fabricated claims they make against innocent people. Unfortunately, not all false AVOs are withdrawn which means that all over Australia there are innocent people being punished for no reason.
It is common for relationships to sour or become hostile, particularly during a heated divorce process, and this can lead to vindictive people making vexatious claims and AVO applications in order to punish their ex-partners. It is common for children to be used as pawns between combating spouses, and it is usually men who end up as collateral damage in these proceedings. For example, if a person is charged with domestic violence and subjected to an Apprehended Violence Order (“AVO”), this could have employment implications, financial ramifications, as well as limit access to property and / or children.
False domestic violence claims are more than embarrassing: they can be financially, emotionally and psychologically devastating for all involved.
Understanding Domestic Violence in Australia
Domestic violence is one of the most prevalent forms of violence against women in Australia. According to ABS’s 2012 personal safety survey (PSS) one in six or 77 percent of women were victims of partner violence, with former Australian of the year, Rosie Batty, calling domestic violence an “epidemic” in her 2016 valedictory speech, according to ABC Net’s Fact Check. Access Economics cites an estimated 1.6 million Australian women over the age of 15 have experienced domestic violence at some point in their life.
Domestic violence is an urgent priority in NSW and across the country. Women’s rights groups continue to pressure the Government to do more to protect women. In October 2016 federal, state and territory leaders met to tackle domestic violence at a national summit with Council of Australian Governments appointing former Victorian Police Commissioner Ken Lay and Batty as founding members of an advisory panel on violence against women.
What is an AVO?
An Apprehended Violence Order is a court-ordered mandate which is intended to protect victims of domestic or personal violence who fear future violence or are receiving threats to their safety. AVOs work by stipulating that the defendant will not assault, harass, threaten, intimidate or stalk the protected person. It is intended to restrict access to the person in need of protection and ensure to see the alleged intimidating behaviour significantly restricted. If the AVO is breached, strict punishments apply.
There are three kinds of AVOs:
- Provisional orders
These are short-term orders which can be granted in serious situations where the need for protections are immediate and cannot wait for the matter to be settled in court.
An interim ADVO is also short-term and is used to provide protections for the applicant throughout the court process and until a final ADVO can be delivered by the court.
- Final court order
This is an ADVO which is granted following a hearing.
The most common AVO claims are made in relation to domestic violence situations, but they can also be taken out against work colleagues, neighbours, friends and family members. What makes AVO proceedings occasionally problematic is that the mandatory conditions laid out by the AVO must be abided by until the court date. Contravening an AVO is a very serious offence which can have devastating effects on your life.
How AVOs are Issued
In NSW, AVOs are issued by a Local Court under the Crimes (Domestic and Personal Violence) Act 2007, which means that you must make an application through a lawyer or advocacy service (private application), or allow the police to make an application on your behalf. There are several different kinds of AVOs and each can be issued differently. Provisional orders can be issued without the matter going to court, and these are usually granted if there is significant and reasonable fear by the applicant that their safety will be in danger before the court date. Similarly, an interim order is intended to keep the protected person safe until the court can make a final ruling on all the facts. Both of these AVOs provide short-term assurances, but a final AVO order is one which is granted by a magistrate following a court date.
What is Considered a False AVO Claim?
A false AVO claim is a statement in which a person makes exaggerated, vexatious or completely fabricated claims against a person in order to achieve the protections provided by an AVO. A person can make a false or vexatious AVO claim for many reasons, including wanting to punish the person, damage their reputation, seeking financial gain or achieving custody of children. Because AVOs most commonly deal with domestic violence issues, it is possible for police to get it wrong while erring on the side of caution.
For instance, a 40 year old Sydney man spent $200,000 in legal fees over the course of two years fighting to clear his name from rape and assault allegations made by his estranged wife. Although he was acquitted of the charges, he maintained that he should have been charged in the first place and vowed to sue police claiming they ignored crucial evidence which would have vindicated him and saved him suffering through the embarrassing ordeal.
Are False AVO Claims Common?
Unfortunately, false AVO claims are common. While domestic violence is a terrible and prevalent crime in Australia, not all AVO claims have merit. There are spouses that are vindictive and will stop at nothing to get even with, or punish their partners, even if it means lying about being a victim of assault or domestic violence. This is particularly troubling as true victims of domestic violence and sexual abuse continue to strive for justice and recognition for the treatment they have suffered at the hands of their partners. By lying and misleading police and the courts, the applicants of these false AVO claims are actually hurting and undermining victims of domestic violence.
Domestic violence is terrible and must be punished accordingly, but not at the expense of the innocent. Everyone in our legal system should be innocent until proven guilty. Sometimes people get charged and found guilty on even the minimal of evidence, which is why advocates say we should not take the rights of men away and assume guilt just because of gender. One way we can do this they say is by ensuring anonymity of the accused during the trial proceedings until the person is proven guilty.
Is it Illegal to Make False AVO Claims?
While making a false AVO claim is not technically a criminal offence (as AVOs are orders, not charges), making false accusations is a crime which is punishable under section 314 of the NSW Crimes Act 1900.
While vexatious APVOs occasionally slip through the cracks and cause significant stress, the overwhelming majority of cases can be defended due to lack of evidence and gaps or contradictions in the PINOPs statements and accusations.
Laws and Legislation
To be found guilty of making false accusations, the prosecution must be able to prove beyond reasonable doubt that the AVO applicant:
- Made an accusation against another person
- Intended for that person to investigated
- Knew accusation was false
- Knew the accused person was innocent
Making a false accusation is a serious crime and carries the maximum penalty of seven years imprisonment. Unfortunately, these four points can be difficult to prove which means that people can escape proper punishment for their crimes.
How to Beat False AVO Claims
Domestic and personal violence includes serious criminal charges and needs an equally serious criminal defence. Defending AVOs can be particularly tricky because of the manner of offences which usually occur within the home away from witnesses, as well as the very protections and procedure involved to make them effective. AVOs can be granted almost immediately, which immediately puts the defendant on the back foot. However, if the claims levelled against you are false, there are ways that a false AVO claim can be defended and the protection orders withdrawn.
Defending a False Domestic Violence Charge
Seek legal advice
The most important thing you can do when facing a false domestic violence charge or being the victim of a false AVO is to seek legal advice from an experienced legal team. Too often defendants do damage to their own case by speaking to police, witnesses and not demanding that their rights be taken into account. The first thing you should do is consult a legal professional to determine your best course of action. If you have been wrongly accused of domestic violence, your best bet is to contact a criminal lawyer as soon as possible. If you are questioned when tired or under duress you might say something that can later be used against you. There have been many cases that have been successfully brought by the Crown Prosecution Service purely on the basis of an admission in interview at the police station.
Just like in any other type of legal matter, you are innocent until proven guilty. The burden is up to the prosecution to prove a crime was committed.Sometimes the prosecution will bring evidence that is unfairly prejudicial, or illegally or improperly obtained. It is up to the defence attorney to get that problematic evidence thrown out.
When accusers falsify evidence to the authorities they are perverting the course of justice. If the case makes it to court the accuser would most likely have to give evidence in court, which could mean committing perjury. Both of these are serious criminal offences that could result in the accuser facing serious jail time..
Find independent witnesses
Domestic violence and personal violence cases can be difficult to defend because of lack of witnesses, however, this can also benefit the defence if there is a distinct lack of physical evidence to corroborate the allegations. If you can also find witnesses and character references who can explicitly state that the allegations are untrue, misleading or unlikely, or that the accuser is not a trustworthy witness, this can also help your case.
Domestic violence is an abhorrent act and should be strictly punished and condemned. However, the weaponization of false accusations and false AVOs can ruin a people’s lives, careers, livelihoods and relationships. What makes it worse is that punishment for making false AVO claims is not severe, which means perpetrators can do so without fearing for their own lives.
It is common for women to be the victims of domestic violence and men to be the perpetrators, but this does not mean that all men are guilty before their day in court. All humans have the presumption of innocence and have the right to be afforded the same protection under the law. Advocates argue that “we should not have to take away the rights of men to give women theirs.” For more information on your rights, check out the Men’s Rights Agency. If you or someone you know are subject to an AVO which you believe to be false, contact LY Lawyers on 1300 595 299 for expert legal advice on domestic and personal violence issues.