A new court guideline has introduced the availability of a 'lapsing interim Apprehended Domestic Violence Orders' being imposed in certain circumstances, rather than a final order being made.
Apprehended Domestic Violence Orders (ADVOs) are court orders which seek to protect a person from another who causes them to fear for their safety, by imposing certain conditions.
ADVOs are applicable between those who have a domestic relationship (i.e., partners, ex-partners, family members).
This guideline, namely the 'Specialist Family Violence List Pilot Practice Note', applies to Local Courts located at Downing Centre, Blacktown, and Newcastle as well as the Moree and Gunnedah circuit (excluding Tamworth).
Whilst ADVOs do not result in a criminal record, and are essentially considered civil orders rather than criminal, a final AVO being made against you can have a variety of impacts.
Ordinarily, there are three stages of ADVO proceedings, being:
- Provisional ADVOs (the immediate order put in place by police until the matter goes to court),
- Interim ADVOs (an order made by the court to ensure the order is in force until the case finalises),
- Final ADVOs (the final order which is made by the court if it deems it suitable to make the order, or you consent to the order being made).
The lapsing interim ADVO scheme allows for Magistrates to make an interim order and adjourn the proceedings for a period to be determined by the court. If there are no breaches of the order during this period, the AVO may be withdrawn by the prosecution and dismissed by the Court.
This adjournment period may involve the defendant undertaking appropriate counselling or intervention services.
If the defendant agrees to engage with this, the Court will record this on the court file and may take this into account when the proceedings return to court.
BENEFIT OF AVOIDING A FINAL AVO ORDER BEING MADE?
The key benefit of the scheme is that it avoids a final order being made, as well as having to wait for a matter to proceed to hearing.
Potential impacts of a final ADVO include being prohibited from obtaining a firearms licence, negatively affecting the obtaining of a security licence, Working with Children Check, tenancy arrangements, and visa status in Australia.
For example, where an interim ADVO is made against you, it will result in your firearms licence being suspended until your case is finished.
If the application for an AVO is withdrawn, and the Interim AVO is no longer in force, your firearms licence will no longer be suspended.
However, if a final ADVO is made, your firearms licence will automatically be revoked.
Section 11(5)(c) of the Firearms Act 1996 ( NSW) prevents a person who has been subject to a final AVO within the 10-year period from which an application has been made from obtaining a firearms licence, unless the AVO has been revoked.
WHERE CAN A LAPSING INTERIM ORDER BE MADE?
The practice note provides that a lapsing interim order may be granted in standalone ADVO proceedings.
Standalone ADVO proceedings refer to proceedings in which an ADVO is not associated with a criminal charge. This may include private ADVOs (i.e., those sought independently of the police) and police initiated ADVOs.
The defence, prosecution, or person in need of protection, are to be given an opportunity to make submissions as to the suitability of a lapsing interim order.
In considering whether the Court should grant a lapsing interim order, it will have regard to factors including:
- Whether such an order is by consent of the prosecutor and defendant,
- The views of the PINOP (including whether they have indicated that they do not want a final order),
- Whether the PINOP has received independent legal advice or engaged with support services,
- The nature of the relationship between the PINOP and defendant,
- Any reconciliation between the PINOP and defendant,
- The seriousness of the allegations contained in the grounds of the application and the conditions being sought,
- Whether lapsing interim orders have been sought in the past,
- Any impacts associated with imposing an interim order instead of a final order, and
- Whether the defendant is seeking treatment and/or counselling.
At any stage during the adjournment period, the complainant, defendant, or police may request that proceedings be relisted for the purpose of fixing a date for a defended hearing.
If the interim ADVO is breached, resulting in criminal charges, the court may relist the proceedings.
Where the AVO application is contested, and it is considered inappropriate to be dealt with by way of a lapsing interim order the Court will make directions for filing and service of evidence and fix a compliance mention and final hearing date.