Families with young people are increasingly facing AVO proceedings in NSW, particularly where domestic violence is alleged.
Too often parents are coming to us for help where their children have been stressed with school or friendships and ended up lashing out. We are seeing siblings against each other, or children against their parents.
Recently a concerned parent asked us about this.
My nephew accused my son of hitting him and now the Police are involved.
The Police have taken out an AVO against my son. Does my son have to go to Court?
These are situations and questions no parent wants to face but there are options.
It depends on what happened and the facts reported to the Police.
AVO
In the above case, the nephew went to the Police who took out an Apprehended Violence Order (AVO) against the son of our client.
The son vehemently denied ever touching his cousin.
However, the NSW Police are legally obligated to apply for an AVO if there is suspected domestic violence or if the matter involves a child under 16.
An AVO is a civil order, not a criminal conviction.
If, however, it is breached, it then can become a criminal offence.
Diversion and the Young Offenders Act 1997 NSW
The Young Offenders Act came into law in 1997 in recognition of the fact that young offenders are not the same as adult offenders and to divert them away from the criminal system and have a chance to turn their lives around.
Young people may not have the skill sets to avoid peer pressure or know how to control their emotions and may not think about consequences. Giving them a chance to acknowledge what they have done and the harm it may have caused to a victim and be responsible, helps to show them a better way of responding and moving on.
Warning, Caution, Youth Justice Conference
The Young Offenders Act provides a number of pathways to avoid Court and address the cause of the offending and the associated behaviours. The Pathway that the Police offer will depend on the seriousness of the offence the young person is charged with.
Warning
Police may deal with the case by giving the young offender a warning, which is the least serious and informal option available to them.
A warning does not require an admission of guilt or a formal record, does not go on a criminal history and is usually handed out directly by Police on the spot rather than formally at a Police Station.
Caution
This escalates to a caution which is a formal and recorded warning for a more serious offence or when there have been repeated negative behaviours or multiple warnings.
A caution requires the young person to admit to the offence by making a non-denial statement and agree to the caution which is officially recorded by the Police but does not form part of a formal criminal record.
Youth Justice Conference
When there are more serious offences involved or the young person has exhausted their eligibility for any more cautions, the Children’s Court will assign a Youth Justice Conference. This is a structured, in-person meeting between the young person, their family, the police and the convenor of the conference. The victim may attend to discuss how the offence has affected them and its impact in general on them.
The young person must agree to attend and admit to the wrong-doing.
Together, all those attending the conference work out a plan for the young person to take responsibility and move forward. This may take the form of an apology, completing community service or completing an action that is restorative for the victim. This will avoid the young person going through the Court system.
The plan has to be approved by the Children’s Court which may amend it or reject it. If, however, it is approved and the young person fulfils all the terms of the plan, the matter will be dismissed. If the young person does not follow the plan, the matter is sent back to the Children’s Court to be dealt with in Court.
What Is a Non-Denial Statement?
Under the Act a non-denial statement is a formal declaration where the young person either admits to the facts or does not deny the facts of the offence alleged against them.
So, in practice, it means that the young person does not have to say “I did it” to qualify for one of the diversionary tools under the act. Generally, this cannot be used later against them in a civil or criminal case.
However, when a young person accepts a caution or to attend a conference, a responsible person must explain to them exactly what is involved and also ensure that the young person has understood what they are accepting.
Problems may arise if there is an AVO in place and the young person denies the allegation and wants to prove his or her innocence.
A young person is only eligible for a warning, caution or Youth Justice Conference if they make the non-denial statement so you cannot deny that you committed the offence, even if you did not do it.
The Catch
As AVOs are mandated by legislation in relation to domestic violence and young people, Police cannot just dismiss the AVO, even if a young person accepts one of the diversionary pathways.
In the situation of our client where the cousins had fallen out, there was a lot of bitterness that our client’s son had to be involved with Police especially with all the pressure of school and exams.
The parents were left with the difficult decision of deciding whether to go ahead with a Caution, even though the son denied doing anything, accepting that the AVO would continue and try to balance family obligations.
If there were more arguments would their nephew retaliate and breach their son, who would then end up with a criminal record?
Would they have to avoid family get-togethers until the AVO ran its course?
AVO Options for Young Persons in NSW
As we said, an AVO is a protective civil order, not a criminal conviction.
However, in the case of the cousins, it would be treated as a domestic violence matter.
If Police take out an AVO against you, you can go to Court and contest the AVO.
Alternately, you can “consent without admissions.” This means that you do not admit to having committed the offence or done anything wrong but that you will agree to whatever conditions are on the AVO. In practice, that usually means that you won’t approach the person protected by the AVO, you won’t harass, harm, stalk or do anything against their safety.
This issue is, that as the AVO is still in place, the risk arises that you can be breached and if convicted of the breach, you end up with a criminal record.
As you have consented to the AVO, the Police or the protected person’s lawyers can say that you knew about the AVO and its conditions and breach you.
Your Choices
Each case is different and for a young person facing an AVO in NSW, so much depends on the circumstances and the relationships between the key people involved.
If you are charged or an AVO has been taken against you please contact us urgently.
You need to know your rights, what options you have and how your choices may affect your future.
We are here to help you each step of the way so that the choices you make are informed and ensure the best outcome for you.
