Understanding Apprehended Violence Orders (AVOs), Including Lapsing Interim ADVOs

In the Australian legal system, Apprehended Violence Orders (AVOs) are pivotal in ensuring protection for people who are at risk of violence from, or feel threatened by, another individual. This Blog will explore the various type of AVOs, the process of attaining one, and the meaning of a ‘lapsing interim ADVO’, and the way it effects both the person protected by it and the person it is made against. 

What is an Apprehended Violence Order (AVO)?

An AVO is an order made by a court against another person of who you feel physically threatened by, to protect you from further violence, intimidation or harassment from that person. AVOs provide that the defendant must not stalk, intimidate, assault or harass you. If the defendant breaches these conditions, they can be charged with a criminal offence.

There are many different conditions that can be imposed upon a defendant to an AVO. These conditions can vary from circumstance to circumstance. A defendant can negotiate with either the police or the person in protection of the AVO (depending on the type of proceedings), to vary, remove, or amend any of the existing conditions the defendant finds themself bound by. If a final ADVO is ordered by the Court, it is generally in place for 24 months.

There are 2 types of AVOs:

1. Apprehended Domestic Violence Order (ADVO)

An ADVO is made against people that are involved in a domestic relationship with the person in need of protection (PINOP). This can involve current and former romantic partners, people living together, parents, children and guardians to name a few. Also, for Indigenous Australians, ADVOS can be made against relatives according to cultural kinship systems.

The parties to an ADVO are as follows:

• Applicant: the police
• Complainant/PINOP: the person in protection of the AVO
• Defendant: the person the AVO is made against

2. Apprehended Personal Violence Order (APVO)

This form of AVO is made against people who have no form of domestic relationship with the PINOP. This may include friends, neighbours, work colleagues or other acquaintance.

The parties to an APVO are:

• Applicant: the person in protection of the AVO
• Defendant: the person the AVO is made against

Who is able to apply for an AVO?

In the majority of circumstances, AVO applications are made by police and accompany criminal proceedings on behalf of a vulnerable individual. However, if it is not the police applying for an AVO, then one may apply for an AVO on their own behalf if they are:

1. At least 16 years of age, and

2. You have experienced physical harm from the defendant and believe that the threat of physical harm will continue

What is an Interim AVO?

An Interim AVO has the same effect as an AVO, but it is only a temporary version. This form of AVO is made where the PINOP is under an imminent threat of physical harm or danger and needs urgent protection. An interim AVO can be issued as soon as the same day an application for an AVO is made. They can last until the court decides on whether to issue a final AVO. This allows for both the immediate protection of a vulnerable individual and extra time for the court to decide on whether to issue a final AVO. It also allows the defendant time to consider having the matter listed for a defended hearing where they can provide evidence of why an AVO in the circumstances is not required.

The Legal Process for an AVO

The general process for the issuance of an interim AVO is as follows:

1. Application: the process starts with an applicant applying for an AVO.

2. Issuing an Interim AVO: if the court believes that the PINOP is under an immediate threat of physical harm or violence, they will issue an interim AVO. The matter will then be listed before the Court and the defendant has the opportunity to proceed to a hearing of the matter where evidence from both parties is given to the court or they can accept the AVO. The court will then issue a final AVO. 

3. Serving the Interim AVO on the Defendant: once the court issues an interim AVO, the interim AVO must be served on the defendant, giving them notice of the order made. A listing date for the court to determine whether to issue a final AVO is then set, and the defendant is notified to attend.

4. Hearing for Final AVO: In this hearing, both the defendant and the complainant/ applicant will present evidence to the court as to whether a final AVO should be issued. The court will then consider this evidence. In the meantime, the interim AVO will remain in place until this hearing date and the final decision made by the court. 

5. Outcome of the Court Hearing: after considering all evidence brought before it, the court will then decide whether the issue a final AVO on the defendant. If a final AVO is issued, it will replace any existing interim orders. If the court rules against issuing a final AVO, then the interim AVO will subsequently be withdrawn.

If you need guidance or representation regarding an AVO, our experienced family lawyers in Liverpool, Fairfield, Blacktown, and Parramatta are here to help.

What is a Lapsing Interim ADVO?

A lapsing interim ADVO was introduced in the Specialist Family Violence List Pilot Practice Note in September 2023. It is available to defendants who are subject to an ADVO but have no associated criminal charges. As a standalone ADVO is not a criminal proceeding, the Court, under the new practice note, have the option to order a lapsing interim ADVO. This means that instead of the time, cost and stress associated with defending an interim ADVO, a defendant can be granted a lapsing interim order. 

The benefit of a lapsing interim order is that the Court will adjourn proceedings for a period of time and if there are no breaches of the ADVO during that time, the ADVO may be withdrawn by the prosecution and dismissed by the court. This means that if there is no breach and the court dismiss the proceedings, then a final ADVO will not be issued.

In this context, ‘lapsing’ is where something is terminated or ceases to exist. Thus, when a lapsing interim ADVO lapses, the temporary protection it bestowed upon the complainant is also terminated and ceases to exist. This means that the defendant no longer needs to adhere by the conditions in the Interim ADVO, and the complainant no longer has the court’s protection under it. 

Many implications can arise from this lapsing. These implications can include:

• Removal of any protections for the complainant under the lapsing interim ADVO.
• Removal of any conditions imposed upon the defendant from the lapsing interim ADVO.
• Exposure to risk of any vulnerable individuals who were protected under the lapsing interim ADVO before it lapsed.

It is vital for parties to a lapsing interim ADVO to understand the implications that may impact them. It is important to seek legal advice to ensure that you have a full understanding of the process involved, what you are required to do/not do, and to ensure that any negative implications can be prevented for all parties.

How to Extend or Reinstate Protection After Lapsing:

After the lapsing of a lapsing interim ADVO, circumstances may arise that influence the PINOP to again seek protection from the court. This can include circumstances where they are exposed to more violence or threatening behaviour from an individual, they were originally seeking protection against. Once the lapsing interim ADVO has lapsed, but the PINOP still feels at risk, they can attempt the following:

1. Apply for a New AVO: the applicant may re-apply for another lapsing interim ADVO and instruct the police/the court that they perceive imminent danger of physical harm or violence from the defendant.

2. Seek Other Legal Remedies or Protections: AVOs are not the only legal remedy available for the protection of vulnerable persons. Should an application for an AVO fail, an application can seek alternate legal remedies such as engaging the police or receiving help from other domestic violence agencies. 

Conclusion

A good understanding of a lapsing interim ADVO is critical for both the complainant and the defendant to ensure both the protection of vulnerable individuals, and that the defendant does not breach any conditions they are bound by. In order to sustain the protection of vulnerable individuals, it is also vital that they understand the steps they can take once the orders have lapsed.

Understanding and navigating an AVO that has been served on you and its respective process can be challenging. Should you find yourself in a position where you are a party to an AVO, it is important that you seek legal advice as to the rights, requirements, protections, and options you have. Our family lawyers in Sydney can provide you with advice on how to obtain a lapsing interim ADVO instead of having a final ADVO made or we can act for you in amending the orders under the ADVO that you will be subject to. 

Reach out to one of our experienced solicitors today to book in your free 30-minute consult!