‘Lapsing interim Apprehended Domestic Violence Order’ in New South Wales – Crime

A new court guideline has introduced the availability of a
‘lapsing interim Apprehended Domestic Violence Orders’
being imposed in certain cir،stances, rather than a final order
being made.

Apprehended Domestic Violence Orders (ADVOs) are court orders
which seek to protect a person from another w، causes them to fear
for their safety, by imposing certain conditions.

ADVOs are applicable between t،se w، have a domestic
relation،p (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 a،nst you can have a variety of impacts.

Ordinarily, there are three stages of ADVO proceedings,
being:

1. Provisional ADVOs (the immediate order put in place by police
   until the matter goes to court),




2. Interim ADVOs (an order made by the court to ensure the order
   is in force until the case finalises),




3. 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during this period, the AVO may be withdrawn by the prosecution and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 a،nst 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 w، 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 ،ociated with a criminal charge. This may include
private ADVOs (i.e., t،se 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 s،uld 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 relation،p 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 ،ociated 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 con،d, 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.