Expired Apprehended Violence Orders in New South Wales - Criminal Defence Lawyers Australia

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An Apprehended Violence Order is also known as an ‘AVO’ for short, which is a court order to protect a person from fear of safety and physical abuse by another person. The AVO conditions a court imposes attempts to serve this purpose.

There are two types of AVOs, namely ‘domestic’ (spouse, ex-partner, or family member) or ‘personal’ (neighbour, co-worker, or friend).

Table Of Contents

How Long Does an AVO Last For?
Can an Expired AVO be Revoked?

How Long Does an AVO Last For?

Final AVOs imposed by the court can last for ‘as long as is necessary, in the opinion of the court, to ensure the safety and protection of the protected person’. If the court fails to specify a period in the order, the order remains in force for a period of 12 months after the date that the order is made.

In practice, the court will impose a final AVO for a period of 6 months to 2-years.

Can an Expired AVO be Revoked?

It has previously been held that the court does not have the power to revoke an AVO which has already expired. An AVO will be considered ‘expired’ when its prescribed period concludes, meaning the order and its contained conditions will no longer be in force.

Whilst it may seem counterintuitive to apply to revoke an order which has already expired, there are numerous reasons why a person may want to do so.

This may include potential impacts on a Working with Children Check (‘WWCC’), where the AVO is made for the protection of a child. It may also include for the purposes of obtaining a firearms licence.

Section 11(5)(c) of the Firearms Act 1996 (NSW) prevents a person who has been subject to an AVO from making an application to obtain a firearms licence, within a 10-year period, unless the AVO has been revoked.

Applications to vary (change or remove its conditions) or revoke (completely get rid of) a final AVO may be made under Division 5 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), specifically sections 72A and 73.

The court may decline to hear an application in respect of an order, if it is satisfied that there has been no change in the circumstances on which the making of the order was based, as per section 73(3).

The case which held that expired AVOs could not be revoked was Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71.

Wass was seeking to obtain a firearms permit but was unable to due to a final apprehended domestic violence order that had been imposed for a period of 12 months.

After the AVO had expired, Wass applied for it to be revoked. The Local Court dismissed his application, and the District Court dismissed his appeal. Wass then brought proceedings in the Court of Appeal seeking judicial review of the District Court decision.

The Court of Appeal ultimately held that the power to ‘vary or revoke’ an order is to be construed as confined to a power to vary or revoke an unexpired order.

This interpretation was attributed to the legislative of the history of the Act, with the power which explicitly allowed for an expired order to be revoked previously removed, as well as the wording utilised in the present section, and its use elsewhere in the Act.

Recent cases which have explored this issue are Commissioner of NSW Police v Murphy [2024] NSWSC 617 and Majumdar v Director of Public Prosecutions (NSW) [2024] NSWCA 117.

In Murphy, the Commissioner of NSW Police sought judicial review of a Local Court Magistrate’s decision to revoke an ADVO on 22 August 2023. It argued that the order had previously expired, and thus could not be revoked on this date because it no longer existed.

However, during the course of the proceedings in the Local Court, Mr Murphy’s legal representative sought for the ADVO to be varied, extending its duration, to enable the revocation application to be dealt with before the ADVO’s finalisation.

This was necessary due to the Local Court’s inability to deal with the matter in a timely fashion, prior to the ADVO’s original expiry.

The Commissioner also argued that it was an ‘improper purpose’ to revoke an ADVO, as it contended this was solely to protect Mr Murphy’s interest in obtaining a firearms licence.

However, the Supreme Court ultimately found that the Magistrate’s purpose could not be deemed improper as his Honour had regard to various reasons, including a lack of breaches, nor an ongoing need of protection of any person with whom the Mr Murphy has a domestic relationship.

In Majumdar, whilst the application to revoke the AVO was filed before its expiration date, it was adjourned several times and the AVO ultimately expired before the revocation application was dealt with.

The lawyers representing Mr Majumdar did not seek to vary the AVO to extend the expiry date until the revocation application was dealt with.

In this circumstance, the reasoning in Wass had to be applied, in that there was no order left to revoke.

The Court of Appeal (Gleeson JA (with whom Mitchelmore and Adamson JJA agreed) specifically commented on this issue noting that: “it was open to the applicant to make a variation application under s 73(2)(a) of the Act, before the AVO had expired, to extend the period of the AVO until the court dealt with the revocation application.

“The applicant did not do so. In the absence of such an application by the applicant, there was no reason for the Magistrate to extend the AVO until the court dealt with the revocation application.”

By Poppy Morandin.

Published on 29/07/2024