Lapsing Interim ADVOs in NSW

In New South Wales, an Apprehended Domestic Violence Order (ADVO) is a type of Apprehended Violence Order (AVO) made under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) to protect a person from domestic violence.

A “lapsing interim ADVO” is an interim ADVO made in accordance with arrangements operating under the Specialist Family Violence List Pilot (and associated practice guidance). It is a temporary court order made for a set period (usually 6 months). If the defendant complies with all conditions and no breaches occur during that time, the police or the applicant will normally withdraw the application, and the court will dismiss the matter at the next mention.

Put simply:

• the interim ADVO is immediately enforceable while it is in force;

• if it “lapses”, the defendant is no longer bound by its conditions from that point onward; and

• any alleged breach during the period can still be prosecuted as a criminal offence.

When can the court consider a lapsing interim ADVO?

Under the pilot framework, the court may consider a lapsing interim order where it is appropriate in the circumstances and consistent with the pilot’s objectives. In practice, lapsing interim orders have been used primarily in “standalone” ADVO proceedings (that is, ADVO applications not running alongside related criminal charges), noting that availability depends on the court and how the pilot is being applied at the relevant time.

How lapsing interim ADVOs fit within the broader AVO framework

1) Provisional ADVOs may be made by police in domestic violence circumstances (including where police consider it necessary for immediate safety). It is typically served on the defendant and can operate before the first court date, until the matter comes before the court and is replaced by a court order or otherwise dealt with.

2) Interim ADVOs (including “lapsing interim” orders under the pilot) may be made by the Local Court at an early stage if the court considers it appropriate to ensure safety and to preserve the position while the application is determined.

A defendant may:

• consent to the making of the order (commonly “without admissions”), or

• oppose the application and have it listed for a defended hearing.

  
  

3) Final ADVOs are made after the application is determined (by consent or following a hearing). A final ADVO is not a criminal conviction, but it is a court order recorded on relevant systems and can have significant downstream impacts (for example, firearms licensing consequences and reputational/employment impacts in certain sectors).

A final ADVO may be made for a fixed period or until further order, depending on what the court orders.

Breaching any ADVO condition (provisional, interim, or final) is a criminal offence and can lead to arrest, charge, bail implications, and sentencing outcomes.

While the precise wording can vary on the order, the mandatory requirements commonly prohibit the defendant from doing any of the following to the protected person (and, in some cases, other protected persons named on the order):

• assaulting or threatening them;

• stalking, harassing or intimidating them; and

• intentionally or recklessly destroying or damaging property belonging to them.

Depending on the circumstances, the court may also impose additional conditions, for example:

• non-contact conditions (no phone, text, social media, third-party contact), sometimes with limited exceptions;

• exclusion conditions (not attending the protected person’s home/work/school);

• proximity restrictions (not approaching within a specified distance); and/or

• property and residence-related conditions.

All conditions must be read carefully: even well-intentioned contact (including “checking in”) can amount to a breach if it is prohibited.

Why were lapsing interim ADVOs introduced and what is the aim?

The pilot approach seeks to improve case management and trauma-informed practice in suitable matters by allowing an interim order to operate for a defined period while the proceedings are adjourned, without immediately pushing the matter to a defended hearing or final determination.

During the adjournment period, the lapsing ADVO remains in force and must be complied with. The adjournment period may allow time for:

• engagement with support services;

• consideration of appropriate long-term arrangements; and

• orderly case management without the matter being immediately contested to hearing.

Parties should not assume that they can “resolve things privately” during this period. Any communication must comply strictly with the conditions of the order (and any bail conditions, if applicable).

What happens at the end of the adjournment?

Outcomes depend on the case posture and who the applicant is:

• If NSW Police are the applicant, discontinuance is a decision for police/prosecution, and the court controls whether the application is dismissed or otherwise finalised.

  
  

• If the protected person is the private applicant, they may seek to discontinue, but the court retains oversight of finalisation.

  
  

If there has been no alleged breach and the application is not pursued, the proceedings may be withdrawn/disposed of and the interim order may lapse/expire in accordance with its terms.

If there is an alleged breach or continuing safety concerns, the matter may be brought back before the court and may proceed to further interim orders, compliance checks, or a defended hearing.

The Specialist Family Violence List Pilot has operated in selected Local Courts (including, at various times, courts such as the Downing Centre and other nominated venues). The availability and operation of the pilot can change over time.

Whether an ADVO is sought for protection or is being defended, careful attention should be given to the wording of conditions, any overlapping bail conditions, and the procedural pathway (consent, negotiated variations, or hearing). Surge Legal can assist with advice and representation in ADVO matters, including applications to vary or revoke orders and defended hearings.

To contact us, please call (02) 8551 7851.