How to Vary or Revoke an AVO, Restraining Order, or Intervention Order
Lawyers and police frequently encounter individuals seeking to vary or revoke Apprehended Violence Orders (AVOs). However, the process is more complex than simply having the complainants change their mind.
Let’s first discuss a few basics before we explain how you can file an application to vary or revoke an AVO form.
What is an AVO?
An Apprehended Violence Order (AVO) is a civil order judicially imposed to protect the aggrieved person (Person In Need of Protection – PINOP) from domestic or personal violence. The order imposes restrictive covenants upon the respondent to safeguard the aggrieved party from harassment, intimidation, or threatening conduct.
AVOs encompass Apprehended Domestic Violence Orders (ADVOs) and Apprehended Personal Violence Orders (APVOs). They may be granted on a provisional, interim, or final basis or as variations. These orders are also known as restraining orders or intervention orders, and these terms are used interchangeably in this blog.
Importance of Proper Service for Varying or Revoking an AVO
After the restraining order is issued, its conditions can be changed (varied) or canceled (revoked). However, a court cannot vary or revoke an AVO if it hasn’t been properly served. Failure to serve it deprives the defendant of a fair trial and renders the court’s decision invalid.
The protected person or the police officer who served the AVO must prove to the court that it was properly and timely delivered. This involves presenting the affidavit or other documentation.
Personal service is the preferred method, involving a police officer or protected person delivering a copy of the order to the defendant. In cases where personal service is impracticable, alternate methods may include:
- Substituted service (leaving the AVO at the defendant’s usual residence or business)
- Publishing the AVO in a newspaper
- Electronically informing the defendant
A court can vary or revoke an AVO under Section 73 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
Varying an AVO
Varying an interim or final intervention, restraining, or apprehended violence order means changing its conditions. Any interested party (Police, defendant, guardian, PINOP, or the Secretary of the Department of Family and Community Services) can apply.
Varying an order includes:
- Extension of the duration of the AVO: The protected party or applicant can apply for an extension before the AVO expires. Even if the application is made on the last day, the order remains in effect for 21 days until the court decides on the next steps. If there’s an objection, the court will request written statements from both parties.
- Reduction of the duration of the AVO: A respondent may request a reduction in the AVO’s duration due to a change in circumstances under Section 73 of the Crimes (Domestic and Personal Violence) Act 2007.
- Adding orders to the AVO: If additional protection is needed, a police officer can request new conditions be added to the AVO.
- Removing orders from the AVO: If certain conditions are deemed unnecessary, a request to remove them can be made. If the protected party objects, written statements from both sides will be required.
- Modifying existing orders of the AVO: Either party can apply for a modification of the existing orders if circumstances have changed.
Revoking an AVO
When a court revokes an AVO, the order is canceled, and its conditions are no longer enforceable. You can apply for revocation if there is a significant change in circumstances or if the restrictions negatively impact you, such as in cases where firearm possession restrictions interfere with employment.
If the protected party objects, both parties must submit written statements explaining their positions.
Since varying or revoking any order involves complex steps, it’s essential to consult a criminal lawyer to determine the best course of action.
Reasons to Vary or Revoke an AVO
To successfully have a court vary or revoke an AVO, you must demonstrate a significant change in circumstances. Failure to do so could result in the court rejecting your application. Consulting an AVO lawyer before applying is strongly advised.
Please note that a PINOP cannot unilaterally modify or vary AVO orders. Accepting an invitation from the PINOP while the AVO is still in effect would constitute a contravention. Any changes to the AVO require formal court approval.
Varying or Revoking Provisional Orders
- If all protected individuals are adults: Both the defendant and the PINOP have the right to apply for a variation or revocation of the provisional AVO.
- If the protected individuals include a child: The respondent cannot initiate an application to vary or revoke the AVO. The provisional AVO must first be converted into an interim order before any variation can be sought.
How to Vary an AVO
To vary or revoke an AVO, follow these steps:
- Submit Application: Complete an Application to Vary or Revoke Apprehended Violence Order form. This application is not available online, but an expert AVO lawyer can assist you in drafting it.
- File with Court: Submit the form to the relevant Local Court. If unsure which court to apply to, follow this guide:
- Serve Parties: Deliver a copy of the application to the Police and other affected parties.
- Attend Hearing: Appear before the Local Court on the scheduled date to present your arguments. If you miss the hearing, your application will be dismissed.
How to Revoke or Drop an AVO
If the PINOP no longer needs protection due to a change in circumstances, either party can apply to drop the AVO. Additionally, if neither party was present when the ADVO was issued (such as in cases where a police officer requested an AVO on behalf of a victim), it’s possible to file an appeal, which could result in the order being revoked.
We recommend taking the following steps if you are considering applying to revoke an AVO:
- Submit a Withdrawal Request: Consult an AVO lawyer to draft a letter requesting the withdrawal of the AVO. This letter should explain the changed circumstances and reasons for the withdrawal.
- File Representations with Police: The defendant’s lawyer should submit representations to the Police requesting the AVO’s withdrawal. A skilled AVO lawyer can help draft these representations effectively.
- Await Police Decision: Allow the Police to review the representations and decide whether to withdraw the AVO.
- Proceed to Court if Necessary: If the Police do not withdraw the AVO, a legal professional can represent you in court to negotiate or contest the AVO.
For Private AVOs, the protected person can apply directly to the court to dismiss the order by submitting a written request.
Can Police Continue to File Charges Even if the AVO is Dropped?
Under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), police are required to act in the public interest and prosecute individuals suspected of criminal offences, even if the AVO is dropped. This includes relying on the victim’s sworn statement, which is sufficient to initiate charges.
FAQs
1. What happens if the victim doesn’t want the accused to be charged?
The PINOP cannot decide if the police should charge the accused. If there’s enough evidence, the police will likely continue with the charges.
2. Can a PINOP withdraw the AVO put by the Police?
No, only a magistrate or the police can modify or revoke the AVO initiated by the police.
3. Can you appeal an AVO?
Yes, if you are the defendant, you have 28 days to appeal the AVO decision.
4. What if the PINOP doesn’t attend the court hearing?
If the PINOP doesn’t attend, the court may either drop the AVO or issue a warrant for their arrest.
