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The recent introduction of a lapsing interim Apprehended Domestic Violence Orders – known as a lapsing AVO – has provided a new avenue for AVOs to be dismissed.

However, the new scheme does not operate in all courts. It is currently being tested and if found to be effective, is likely to be extended to more regions.

What is a Lapsing AVO?

A lapsing AVO is an interim order where the court adjourns the case for a period of time – usually six months. If there are no breaches of the AVO, then it can be withdrawn at the next court date.

It is important for a defendant to ensure that they do not put themselves in a position where breaches can occur, or they can be accused of breaching the AVO.

An experienced AVO lawyer will be able to advise you about whether this is an option and how to go about applying for it.

Advantages of a Lapsing AVO?

The main advantage of a lapsing AVO is that it allows the case to be dismissed without the court having to hear evidence and submissions about why the AVO should or should not be made.

It also has the benefit of being more cost-effective in some circumstances.

While an AVO is a civil order, it still can have consequences for defendants including immigration restrictions, employment consequences as well as refusal or cancellation of a firearms licence and security licence. If the AVO involves a child, then it will have consequences for any Working with Children Check.

Disadvantages of a Lapsing AVO?

The main disadvantage of a lapsing interim AVO is that the length of the adjournment is usually lengthy – being six months. This can mean that by the time the AVO is withdrawn, the consequences for a defendant have already been catastrophic.

Often a hearing date can be obtained earlier than six months, meaning the court can dismiss the AVO after hearing evidence and submissions from your lawyer at an earlier stage. You can read more about how to beat an AVO.

Further, a specialist AVO lawyer will usually be able to draft representations to police for the withdrawal of the AVO. Generally, police only require six weeks to withdraw an AVO after receiving representations. This is obviously a significantly shorter time than the lapsing AVO process. You can read more about how to get an AVO dropped early.

When Can a Lapsing AVO be Made?

A lapsing AVO can be made where there is an AVO without any criminal charges listed at Downing Centre Local Court, Blacktown Local Court, Newcastle Local Court and Moree and Gunnedah circuits (but not Tamworth).

The Local Court Practice Note provides an exhaustive list of factors the court will take into account when considering whether to grant a lapsing interim AVO:

• If police and the defendant both agree to a lapsing AVO;
• If the ‘person in need of protection’ (PINOP) agrees to a lapsing AVO;
• If the PINOP does not want any AVO in place;
• If the PINOP and defendant are being assisted with psychologists, counsellors, support programs or other social services;
• Whether the PINOP and defendant wish to continue their relationship;
• The nature of the relationship between the PINOP and defendant,
• The seriousness of the allegations;
• The AVO conditions which are in force;
• Whether there are any previous AVOs;
• The repercussions of an interim order instead of a final order.

The court will consider the relevant factors above and hear submissions from police and your lawyer. If the court is persuaded to make a lapsing interim AVO, the matter will be adjourned for this purpose.

If the court is not minded to make a lapsing interim AVO, then a timetable for filing of evidence will be set. The matter will be adjourned for a compliance check date. Assuming both parties file evidence, the matter will then be set for a final hearing date.

Specialist Family Violence List Pilot Practice Note

The ‘Specialist Family Violence List Pilot Practice Note’ contains information relevant to the lapsing AVO scheme.  

It was a response to the overflow of AVO matters where the allegations were relatively trivial. The courts are attempting to use this process to reduce the workload as well as the number of AVO cases that will go to a final hearing.

For advice on whether this scheme is available and appropriate to your circumstances, contact us online or call us on (02) 7804 2823.