Apprehended Violence Orders: Amendments and COVID-19 temporary changes

A number of changes have been made to the Apprehended Violence Order (‘AVO’) process and the duration that these orders can last. Before looking at these changes, it is important to understand what the terms are used when referring to components of this process.

Apprehended Violence Order Terminology

The terminology used when speaking about the process of having an AVO made can be quite complex. These are some of the key terms things you should know:

PINOP: ‘person in need of protection’ (usually the ‘victim’ of domestic or personal violence)

Private ADVO: A PINOP applies to have an ADVO put in place and these are known as ‘private ADVOs’.

Police ADVO: Police make an application for an ADVO can be made on behalf of PINOP, even if they do not want an ADVO in place.

Provisional Order: A Provisional order is made by the police or court in response to an urgent application for an AVO as the Police believe that someone needs immediate protection. Usually, these last for 28 days before the matters is listed in the Local Court for the Magistrate if the ‘interim order’ should be made or the AVO be withdrawn.

Interim Order: An Interim AVO is an order made by the court which extends the conditions of the Provisional AVO as the court believed it is necessary for the protection of another individual.  If an Interim Order is made against you, you will be told the date that you must attend court so that the application for a ‘Final Order’ can be considered by the court.

Final Order: A Final Order is made in the following circumstances:

1. You were served with AVO documents but did not attend court; or
2. You have consented to the AVO; or
3. A hearing took place and, based on the evidence, the court believes that an order should be made.

A Final Order will be made for a specified period of time,(for example, 6  months, 12 months or two years). Most Final Orders are made for 12 months.

For more information about how AVOs, see our previous blog.

What changes have been made to Apprehended Violence Orders?

As of 28 March 2020, the Crimes (Domestic and Personal Violence) Act 2007 has been amended by the Crimes Legislation Amendment Act 2018.

The most significant change is the greater clarity surrounding the factors the court is to consider in determining if an ADVO is to be made and the duration for which an ADVO can last,

Apprehended Violence Order’s generally:

Under section 79A, when determining the duration of ADVO, the court is to consider the following factors:

1. The circumstances of the protected person and that person’s views;
2. The circumstances of the defendant and the impact of the order if the duration of the order were to be more than the default period;
3. Any material that the court relied on under section 16 and 17 in deciding to make an apprehended domestic violence order;
4. Any other matter that the court considers to be relevant.

The ‘default period’ of an ADVO has also changed as follows:

• Where the defendant is under 18 years of age, the order will last for one year.
• In all other cases, the ADVO will last for 2 years.

Indefinite duration:

In determining the period that an ADVO will last, the court can make an order for an ‘indefinite period’. In this instance, the court must be satisfied:

1. The applicant has sought an indefinite order; and
2. The order relates to a defendant who was 18 years of age or older when the application for the order was first made; and
3. There are circumstances giving rise to a significant and ongoing risk of death or serious physical or psychological harm; and
4. That risk cannot be adequately mitigated by an order of limited duration.

A defendant in prison:

In cases where the defendant has been sentenced to a term of imprisonment for a domestic violence offence against the protected person, the duration of the ADVO must be (by default) the duration of the head sentence plus two years.

The court may, however, vary this period if the court is satisfied that it is appropriate to do so.

Changes have also been made to the ADVO application form to allow applicants to set out the period for which the orders they are seeking should last, as well as the reasons why.

What changes have been made to Domestic and Personal Violence Orders during the COVID-19 Pandemic?

As of 1 April 2020, a number of changes will be made to the management of Domestic and Personal Violence Orders. The following changes are important to note.

Apprehended Violence Order hearings and mentions until 1 May 2020

AVO hearings listed prior to 1 May 2020 will not proceed. No new AVO hearings will be listed. These matters will require an adjournment, and this operates as follows:

• ADVO with related Court Attendance Notice (CAN): proceedings will be adjourned to the same date as the CAN.
• ADVO without CAN: proceedings will be adjourned for mention for no less than 3 months.

Listing of Provisional Orders

The COVID-19 Legislation Amendment (Emergency Measures) Act 2020 amended the Crimes (Domestic and Personal Violence) Act 2007 (‘the Act’) to facilitate changes to the listing of provisional orders during the pandemic period.

From 25 March 2020, provisional orders may not be listed by the Court for a period of up to 6 months.

More details on how the court process has changed, see the Local Court Memorandum dated 31 March 2020.

Urgent Apprehended Violence Order applications

The Court will continue to accept applications which are considered by the court to be ‘urgent’. These include applications to vary or revoke a final AVO pursuant to Part 10 of the Act or an application by a defendant to vary or revoke a provisional order pursuant to section 33A of the Act.

Private Apprehended Violence Order applications

Persons seeking assistance with a private AVO application should be encouraged to seek remedies from Police.

Where this is not possible, such persons should continue to be assisted by the registry.

If you or someone you know requires assistance with applying for, or defending, an Apprehended Domestic Violence Order, you can contact the team at Hamilton Janke Lawyers 24/7 by calling 4038 1666.