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Every day we speak to clients seeking information about how to get an AVO dropped or how to get their AVO conditions changed in some way. These people are typically either:
- The person who called the police leading to the AVO being issued to another person;
- The person who has the AVO and they want it removed or the conditions changed in some way; or
- A partner or family member who wants to support the person issued with an AVO (particularly if they have children)
Below we’ll explain the types of AVO’s in New South Wales followed by the answers to these common questions we hear from our clients:
- Can an AVO be removed?
- What happens when a parent has an ADVO?
- Do they still get to see/share custody of their children?
- Can the victim cancel the AVO if they change their mind?
- What can be done about false AVO claims?
Types Of AVO’s
AVO stands for Apprehended Violence Order.
AVO’s are civil orders, not criminal orders. However, if the conditions of an AVO are breached, it automatically becomes a criminal law matter.
There are two types of AVO’s in New South Wales. They are:
- Apprehended Domestic Violence Orders (ADVO’s)
- Apprehended Personal Violence Orders (APVO’s)
The key difference between the two is that:
ADVO’s are specific to domestic relationships. That is, people in a relationship, a house/flat mate, children, former partner or spouse or family member.
APVO’s are for when the relationship between the alleged offender and victim is not domestic. For example, a next door neighbour, work colleague or stranger.
For ease, we’ll refer to these collectively as AVO’s throughout this article.
Other common terms to be familiar with include:
- Defendant – The person who has been issued an AVO by police or privately
- PINOP – Person In Need Of Protection. Also referred to as the ‘Protected Person’.
Police Issued AVO’s
It is common for police to initiate AVOs in domestic situations.
There are three names given to an AVO:
- Provisional AVO (temporary)
- Interim AVO (temporary)
- Final AVO (longer term)
The initial AVO that police apply for is called a Provisional AVO.
When the matter goes to Court for the first hearing (called a mention), it changes to an Interim AVO which is ordered by the Court. The Interim AVO will remain in place until or unless the police withdraw the application, the application is dismissed by the Court or the Court makes a Final AVO (Final Orders).
Private AVO’s
People in New South Wales may apply for a Private AVO in the following circumstances:
- The police have not applied for an AVO on their behalf; or
- The person applying for the AVO does not want the police to represent them in the matter.
There are no provisional AVO’s for private applications. An Interim AVO may be made at the first Court mention, if the Court believes it is necessary, until the final hearing where either Final Orders are made or the application is dismissed.
If you want to apply for a private AVO, you must go into this process informed. If you inadvertently do not follow the procedures and acceptable evidence requirements of the Court, your application may be dismissed. If the Court finds your application to be wasting their time and resources, you may need to pay the legal costs of the defendant.
You must seek expert criminal law advice to ensure you have the best chance of success.
Can An AVO Be Removed Or Dropped?
It is possible to have an AVO dropped, removed, cancelled, dismissed or revoked (the legal term used).
It may be possible to appeal a decision if the application includes evidence of a change in circumstances since the AVO was applied for.
Can The Victim Cancel The AVO If They Change Their Mind?
The victim can request to have an AVO cancelled however, it depends on whether it is a police issued AVO or a private AVO.
Can Police Withdraw AVOs?
The police prosecutor can ask the Court for permission to withdraw an application for an AVO. However, the police are unlikely to just withdraw the AVO without first consulting the Domestic Violence Liaison Officer (“DVLO”). DVLO’s are police officers who have specialised training in supporting victims of domestic violence. The prosecutor will consider the views of the PINOP and Officer in Charge (“OIC”), but are not bound by their views.
There are a number of factors to be considered before the police will withdraw the AVO and that’s why it’s important to get expert legal advice.
Can You Cancel An AVO Order?
If you are the PINOP and the applicant in a private AVO application, and you wish to have the AVO dropped (revoked), this is likely to be possible because the police do not need to approve the withdrawal.
If you are the defendant and want to apply to cancel (revoke) the AVO, you need to make an application to the Court. If there are children listed as PINOP’s on the application, you first need the Court’s permission to deal with the application. Even if you get the Court’s permission (if there are children on the AVO), if the police do not agree to cancel (revoke) the AVO, it is likely that there will need to be a contested Hearing.
If you are the PINOP on a police initiated AVO application, although you are able to make an application to the Court seeking to have the AVO revoked, generally speaking, if the police don’t consent to withdrawing the AVO then there will need to be a Hearing about whether there is a need for an AVO. Just like for defendants, if there are children on the AVO, then the first step is to get the Court’s permission.
In circumstances where police are the applicant, your lawyer may be able to negotiate with the Police to have them withdraw the AVO application. If the negotiations are successful, the police may ask for the Court’s permission to dismiss (cancel) the AVO.
That being said, it is quite uncommon for an AVO application to be withdrawn, especially when there are children on the application. It is more common for the conditions to be varied (altered) in some way. This may include some conditions being removed.
The police and Court is always looking to prioritise a PINOPs safety over a PINOP (or anyone else’s) request.
Applying To Change An AVO
The language that you will hear commonly used instead of “change” is “vary”. That is, when seeking to change the conditions of the AVO, this is referred to as making an application to vary the AVO.
It is not possible to apply for a variation to a Provisional AVO.
It may be possible to apply for a variation to an Interim AVO or Final AVO.
Both the Defendant and PINOP may apply to vary an AVO once it becomes an Interim Order. However, if there are children listed on the AVO, then you must first obtain the Court’s permission to deal with the application.
An application to change the AVO may also include an application to reduce or extend the length of the AVO.
The Court can refuse to vary an AVO if satisfied that there has not been a change of circumstances since the AVO was first applied for.
Sometimes the Court will vary the conditions of the AVO if there are children on there so that a parenting agreement can be made. For example, instead of there being a condition which prevents all contact with the PINOP’s, the Court may vary the AVO conditions to allow contact to be in accordance with a written parenting agreement, for the purposes of attending counselling or mediation, or to give effect to parenting Orders.
We know there are often a range of reasons why people want an AVO to be dropped or changed in some way. Some examples include:
- The conditions of the AVO mean they cannot continue their current employment (e.g. if you are unable to go within a certain distance of a particular location)
- The conditions of the AVO do not allow them to access equipment or belongings from the home/garage etc.
- The PINOP no longer fears the defendant or the conflict has been resolved.
- The defendant and PINOP have children together and want to be able to continue to see the children or co-parent.
- Pressure from others to cancel it or change the conditions.
- Changes in health/medical conditions – requiring the defendant to assist where the AVO does not currently allow.
- The PINOP has discovered they are pregnant after the application has been made against their partner/spouse and they want their partner present.
- The PINOP has a desire to reconcile with the defendant and the threat is no longer present.
In the case of personal belongings not being accessible, a Property Recovery Order can be made instead of an application to vary an AVO.
If the circumstance existed when the Order was made, it’s less likely to be considered a valid change by the Court. You must provide acceptable evidence to show a legitimate change in circumstances. An experienced AVO lawyer will be able to help you provide the most acceptable evidence to support your application.
Importantly, the Court can refuse any variation request if the risk is considered to be too high.
What Happens When A Parent Has An ADVO? Do They Still Get To See/Share Custody Of Their Children?
If there are Parenting Orders (Consent Orders approved by the Court or Parenting Orders made after a Hearing in the Family Law Courts) in place, then the conditions of those override the conditions of the AVO. That is, if there are Parenting Orders that say that you can have contact with your children, but the AVO says you cannot have contact with your children, then the Parenting Orders prevail and you are permitted to have contact with your children in accordance with the Parenting Orders. However, it is important to understand that this means you must strictly comply with the Parenting Orders otherwise, you will be in breach of the AVO. For example, if you do not return your children to the other parent’s care at the time specified in the Parenting Orders, then you will be breaching the no contact condition of the AVO.
Note that Parenting Orders are different to parenting plans (which are not legally enforceable).
If there are no Parenting Orders, the Court may vary the conditions of the AVO if there are children on there so that a parenting agreement can be made. For example, instead of there being a condition that prevents all contact with the PINOP’s, the Court may vary the AVO conditions to allow contact to be in accordance with a written parenting agreement.
If you are unsure about whether you may be in breach of your AVO if you contact your children, you should seek expert legal advice first.
How To Fight False AVO Claims
In circumstances where someone is falsely accused leading to a provisional or interim AVO, they must seek legal advice immediately. A criminal lawyer (despite it being only a civil matter at this point) knows what you must do and say (or not say) to have the best opportunity to fight these allegations.
Advice On How To Get An AVO Dismissed Or Changed In NSW
If your lawyer advises that it is unlikely for your application to have an AVO dismissed (cancelled or revoked), making an application to change some of the conditions of the AVO will likely be the next best avenue.
Early advice typically provides more options and avenues to explore. When you are informed with the most up to date information and insights from lawyers like ours who witness how Judges and Magistrates make decisions every day, you will be in the best position to make the right decisions for you.
We can help you with advice from the moment you are aware that you are facing an AVO or if you may be in breach of an AVO.
We have two office locations – Penrith & Blacktown – as well as phone and online consultations if preferred.
Disclaimer: The content in this article provides general information however it does not substitute legal advice or opinion. Information is best used in conjunction with legal advice from an experienced member of our team.