Written statements and evidence (defendant)

To get an ADVO, the applicant must prove that they, or the protected person, is fearful you will:

• commit a domestic violence offence against them
  
• intimidate them or a person with whom they have a domestic relationship, or
  
• stalk them.
  

This is a 'subjective test' - it is based on what the protected person actually feels.

They must also prove that the protected person fear is based on reasonable grounds. This is an 'objective test' – it is based on what a reasonable person in the protected person's situation would feel.

The applicant doesn't need to prove that you have been violent to get an ADVO. 

The applicant doesn’t need to prove that the protected person fears you if the protected person:

• is a child
  
• is a person of appreciably below average intelligence functioning
  
• has reasonable grounds to fear a domestic violence offence
  
• has been the victim of a personal violence offence committed by you on more than one occasion, and there is a reasonable likelihood that you will commit a further personal violence offence against the protected person, and the AVO is necessary to protect them.
  

An ADVO that is made in these circumstances can only contain the mandatory orders. For more information, see Types of AVOs.

To get an APVO, the applicant must prove that they, or the protected person, is fearful you will:

• commit a personal violence offence against them
  
• intimidate them, or
  
• stalk them.
  

This is a 'subjective test' - it is based on what the protected person actually feels.

They must also prove that the protected person fear is based on reasonable grounds. This is an 'objective test' – it is based on what a reasonable person in the protected person's situation would feel.

The applicant doesn't need to prove that you have been violent to get an APVO. 

The applicant doesn’t need to prove that the protected person fears you if the protected person is:

• is a child
  
• is a person of appreciably below average intelligence functioning.
  

Usually, the Court will make directions (orders) for the applicant to file and serve their statements first. They will usually be given no more than two weeks to do this.

You will then have to file and serve your statements. You will usually be given another two weeks to do this.

Your statement and your witnesses' statements are very important. In your statement you should include:

• information about you and the protected person
  
• the incident or incidents
  
• your response to the protected person's statement, and 
  
• how you feel about the protected person.
  

Your witness statements can be written by somebody who saw or heard something that supports your case, for example, a person who:

• knows both you and the protected person
  
• has seen the protected person act violently towards you
  
• can describe how you and the protected person behaved towards one another.
  

Sample: Sample Defendant witness statements

These statements must include all of the evidence you want to give to the Court. You and your witnesses won’t be able to give any more evidence at the hearing, unless you are given permission by the Court. You will only be able to be cross examined at the hearing (asked questions by the applicant).

While you are preparing your witness statement, you should also gather supporting evidence to attach to your witness statement.

Your supporting evidence could include:

• hospital records
  
• doctor's reports
  
• police incident reports
  
• photographs
  
• copies of emails
  
• copies of text messages
  
• comments on social media, such as Facebook and twitter.
  

To get a copy of this information you may need to issue a subpoena, a court order that makes someone give documents to the Court or come to court to give evidence, or apply to the police for a Police Incident Report.

There is n​o set form for a witness statement. However, you should write your statement in a clear and logical way. You should also write the statement using your own words.

W​​​hen setting out your statement is a good idea to:

• use white A4 paper
  
• type if possible, or use neat, clear handwriting in black or blue pen
  
• use only one side of the paper
  
• write the name of the person making the statement at the top of the page.
  

For exampl​​​e: 

Statement of Gary Smith

There are certain things that you should include in your statement. You should write your:

• name
  
• address
  
• age and;
  
• occupation
  

For ​example: ​​

I, Gary Smith, of 47 Wensleydale Avenue, Greenacre, born 7 February 1971, unemployed, state: 

OR​

I, Gary Smith, of 47 Wensleydale Avenue, Greenacre, aged 41, unemployed, state: 

You should then include the details you want the court to consider. You can do this by using: 

• short, numbered paragraphs, or
  
• a question and answer format.
  

The statement should include:

• information about you and the protected person
  
  • ​​​​the name of the protected person
    
  • the address of the protected person, if known
    
  • the date of birth of the protected person, if known 
    
  • the relationship between you and the protected person, for example, neighbour or de facto spouse 
    
  • how long you have been in the relationship, if applicable
    
  • the names and dates of birth of any children you and the protected person have together or who live with you
    
  • whether any AVOs or other orders have been made in the past to protect you from the protected person
    
  • whether the protected person has ever been charged or convicted of any domestic violence offences
    
  • whether there is a family law court case between you and the protected person 
    
  • whether there are any family law orders in place
    
  • whether the Department of Communities and Justice (DCJ) is or has been involved
    
  • whether you and the protected person have any arrangements for you to spend time with your children.
    
  • ​whether there has been any violence or threats towards you and/or your children in the past
    
  • any recent incidents, including places, dates, what you saw, heard, said and did
    
  • details of any reports or statements made to the police, including any event numbers
    
  • details of any doctors reports or treatment by a doctor or hospital relating to any injuries caused by the protected person
    
• other useful information
  
  • the protected person's use of alcohol or drugs, if known
    
  • the protected person's access to firearms or other weapons, if known
    
  • whether there are any mental health issues
    
  • details of any attempts by the protected person to contact you or communicate with you
    
• your response to the information in the applicant or protected persons statement
  
  • ​if you disagree with anything that is said
    
  • if you believe something is false
    
  • correct anything you say is wrong
    
  • explain your version of what you say happened
    
• infor​mation about how you feel about the AVO application
  
  • ​if you think that the protected person does not fear you and why
    
  • if you believe that the protected person does not have a reason to fear for his or her safety and why
    
  • if you believe that the protected person has a motive for the application, for example retaliation.
    

If you write about a conversation you should:

• ​use the exact words that the person said, including swear words
  
• set out conversations in speech marks 
  
• use the words that were spoken. If you can’t remember exactly what was said you should add the phrase "words to the effect of".
  

For example:

I walked over to Elizabeth and said "You need to start pulling your weight around here". She said "Why should I? You're the one who doesn't work!"

OR​

I walked over to Elizabeth and said "You need to start pulling your weight around here". She said words to the effect of, "Why should I? You're the one who doesn't work!"

You must finish the statement by stating that everything you have written is the truth, for example:

This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false or do not believe to be true.

​You then need to sign and date the statement, for example:

​Signed: G. Smith 
Dated: 17 December 2010

​​You must also have a witness sign and date the statement, for example:

Signed: B. Kolik 
Dated: 17 December 2010 

There are three types of subpoenas:

• Subpoena for production - this is a court order that requires a person to produce documents
  
• Subpoena to give evidence - this is a court order that requires a person to attend a hearing to give evidence. You would use this form to get a witness to attend the hearing.
  
• Subpoena for production and to give evidence - this is a court order that requires a person to produce documents and attend a hearing to give evidence. You would use this form if you wanted someone to produce documents and give evidence at the hearing.
  

You need one form for each subpoena.

You can get subpoena forms from:

• your nearest Local Court registry, or
  
• the Forms page on the Local Courts website.
  

You should address the subpoena to the witness you want to attend or the person you want to produce documents.  

If you want to get documents from an organisation or company, you should:

• address the subpoena to the 'Proper Officer' 
  
• include the registered address of the organisation or company.
  

If you are filling out a Subpoena for production, it is important that you clearly describe the documents or things the person needs to produce to the Court. If your request is too vague or broad, the person might object and the Court might order that the person doesn’t have to comply with the subpoena.

Instructions: Instructions for completing a Subpoena for Production 

Sample: Sample Subpoena for Production

Instructions: Instructions for completing a Subpoena to Give Evidence

Sample: Sample Subpoena to Give Evidence

Instructions: Instructions for completing a Subpoena for Production and to Give Evidence

Sample: Sample Subpoena for Production and to Give Evidence

Sometimes, you might need to apply for an extension of time for the service of a subpoena. For example, you find out about new evidence a few days before your hearing date and you don’t have time to comply with the standard rules.

A court may order short service if it is satisfied that it is in the interests of justice to do so. Any order made for short service must be attached to the subpoena and served.

To apply for an order for short service, you will need to complete:

• a Notice of Motion, and 
  
• an Affidavit in support of your application.
  

You can get blank copies of these forms from:

• your nearest Local Court registry, or
  
• the Uniform Civil Procedure Rules Civil Forms website.
  

You can file your subpoena in person, by post, fax or email.  

You need to file three copies of each subpoena.

You don’t have to pay a fee to file a subpoena.

A court may order short service if it is satisfied that it is in the interests of justice to do so. Any order made for short service must be attached to the subpoena and served.

The Court will fill in the date that the documents have to be provided by and/or the date to attend the hearing. The Court will also fill in the last date for service.

Instructions: Instructions for completing a Notice of Motion for short service of a subpoena

Sample: Sample Notice of Motion for short service of a subpoena

Instructions: Instructions for completing an Affidavit in support of short service

Sample: Sample Affidavit in support of short service

The subpoena must be served on (given to) the person it is addressed to on or before last date for service.

A person doesn’t need to comply with a subpoena if it is served after the last date for service.

You can pay for a professional process server to serve the subpoena or do it yourself. 

You can serve a subpoena by:

• handing it to the person it is addressed to 
  
• emailing it to them, or 
  
• posting or faxing it to their residential address. 
  

When you serve the subpoena you must also give the person or organisation you are serving conduct money. Conduct money is money paid to a person who receives a subpoena to cover the cost of producing the document(s) or going to court.

There is no specific amount of conduct money you must give for a subpoena to produce but must be reasonable. Many organisations will have a set amount for conduct money. You should contact the organisation before serving the subpoena to make sure you provide enough conduct money.

The amount to be given for a Subpoena to Give Evidence should not be less than $50.05 (as at July 2014). This amount covers the cost of the witness travelling to attend court.

The person who served the subpoena needs to fill out and signed the Statement of Service at the bottom of the subpoena. 

Their signature must be witnessed.

The return of subpoena date is the day the Court has ordered for the person or organisation in the subpoena to:

• bring the documents to court, or
  
• attend to give evidence.
  

It is written on the subpoena.

The documents requested under a Subpoena for Production can be posted to the Court but they must arrive by the return date. 

On the return date, you should go to the court registry and ask for leave (permission) to look at and/or make copies of the documents. Sometimes the Registrar can give you access and sometimes you may need to ask the Magistrate for leave to look at and/or make copies. You usually can't take the produced documents away from the courthouse without a court order.

If the Court has given you leave to look at and/or copy the documents, you can do this on the return date or come back on another day.

You should check with the Court how much they will charge to make photocopies of the documents if you have been given permission to copy them.

If the person or organisation that has been served with the subpoena can't find the documents you are asking for, they will need to tell the Court that they haven't been able to find the documents.

The person the subpoena is addressed to may object to providing the documents or attending to give evidence. They can ask the Court to set aside the subpoena. If this happens, you will be served with a copy of their application and get a chance to explain to the Court why you need the documents and/or witness and how they are relevant to your case. 

If a witness does not comply with a subpoena, the Court may issue a warrant for their arrest and have them brought before the court. ​