|AVO Costs are Weighing Down
Under the Crimes (Domestic and Personal Violence) Act 2007 section 99 says:
(1) A court may, in apprehended violence order proceedings, award costs to the applicant for the order or decision concerned or the defendant in accordance with this section.
(2) Costs are to be determined in accordance with Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986 .
(3) A court is not to award costs against an applicant who is the person for whose protection an apprehended domestic violence order is sought unless satisfied that the application was frivolous or vexatious.
(4) A court is not to award costs against a police officer who makes an application unless satisfied that the police officer made the application knowing it contained matter that was false or misleading in a material particular.
(5) Subsections (3) and (4) have effect despite any other Act or law
The operation of these sections is such that respondents to applications are frequently put to substantial professional costs in answering an application for which there is little real prospects of success. The above section prevents in practice the successful awarding of costs in those circumstances. This can be especially outrageous when Police bring such applications on a plainly problematic basis and courts, at least in some areas, are conventionally reluctant to award costs against Police.
There is a paucity of common law authority on what constitutes a test for the assessment of whether or not an application for an AVO is frivolous or vexatious. The ordinary test for frivolity and vexation operates to create a high threshold for the operation of costs under the act.
It is an admirable feature of the legislation that victims of domestic violence need not worry about whether or not they should bring an application under the shadow of fear cast by the potential for a significant costs award against them. However the practical application of such a principle provides persons who are thinking of bringing applications, without any real or meaningful proof, to do so under what is the protection for a domestic violence victim.
Often clients have to be advised that even though they may have a perfectly legitimate defence against an application for an AVO, they should consider the financial implications of whether or not to proceed as they are unlikely if they win to recover their costs. Worse, clients must be warned that if they do not succeed at court, a costs order can be made against them. You only have to attend the Local Court on an AVO list day in Wollongong, Port Kembla, Albion Park, Sydney, Newcastle, really anywhere at all and see clients retreating from a defence in order to save money.
AVOs being of a nature that frequently sees the applicant appearing in person, are cases that typically suffer from time dilation. As is well-known matters involving self-represented parties often occupy a day, and sometimes more, of hearing time. The costs in such matters run into the thousands of dollars and a respondent to such an application, even upon a successful defence, is unable to recover any costs without first showing that the application was frivolous and vexatious to begin with.
The difficulty with that high requirement is that it is rarely the case that the court will consider the claims in an application frivolous and vexatious unless, on its face, the application demonstrates a manifest lack of integrity. Registrars and Chamber Magistrates appear to frequently exercise their responsibilities in determining the legitimacy of applications to a very high standard of proficiency. With the consequence that, almost without exception, the applications that are put before the court are ones that on the face of it have a proper basis for adjudication. In those circumstances it seems that it is inevitable that the court will not find such an application to be frivolous or vexatious. However, that is not to say that the application was doomed to failure or had no real prospects of success from the outset.
The current reality of AVO’s is that their use extends well beyond the scope of victims of domestic violence who fear incurring substantial legal costs to secure their rights. It’s no secret that AVOs are frequently used as a stepping stone, tool or leverage in a wider family law dispute or as an addendum to care proceedings. Worse yet, we have seen an increase in the use of AVOs as a structured response to bullying in local secondary schools. An increase in the use of AVOs by children against other children, or by young adults against children, leads to circumstances where many young people are being confronted by incurring substantial costs in an attempt to defend. In the case of bullying this adds insult to injury. Yet bullying cases are a worthy example of how applications bought by a bully (alledging s/he is the victim of bullying by the respondent) are bound to be found more than merely frivolous or vexatious.
It is important that the court have a capacity to order costs on behalf of the successful party. Not to do so is creating a prejudice which the original drafting of the legislation may well have overlooked. That prejudice is that young and disadvantaged parties (as well as victims of crime who are laboring under the burden of a cross application brought where the applicant is a defendant in criminal proceedings) are confronted with having to pay substantial legal costs to defend themselves.
Consideration needs to be given to whether or not it would be appropriate for the law to facilitate a consideration of a costs award in circumstances beyond those presently contemplated by the section. Such amendments could allow for costs to be ordered irrespective of whether or not the party is the applicant or the respondent. At the very least this should be available where a successful respondent, seeking a costs order, falls into one or more categories of persons. Such categories might include:
a – respondents who are under eighteen years of age,
b – persons who are currently involved in criminal proceedings as an alleged victim/complainant,
c – persons who are currently involved in care proceedings or family court proceedings, where the applicant party regarding the AVO is also a party.
UPDATE: On 23 January I wrote reps to the Attorney General NSW regarding this issue. The matters raised here have been incorporated into a review of this area of law that the Criminal Law Review Division is currently undertaking.