One of the most common enquiries domestic violence lawyers receive is from defendants and protected persons wanting to vary an AVO.
An Apprehended Violence Order (AVO) is a court order that is made to protect a person from the violence, harassment, intimidation or other threatening behaviour of another person. In its simplest form, an AVO can be loosely described as a legal contract between the defendant and the PINOP.
There are generally two parties to an AVO – the person in need of protection (PINOP) and the defendant.
An AVO contains conditions that the defendant must follow to avoid breaching the AVO. These conditions can be varied (changed) if a party satisfies the relevant tests under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
Vary/Revoke AVO Meaning
Varying an AVO refers to the process of changing the conditions of an AVO.
The variations that can be made to an AVO include:
- An extension in the duration of the AVO;
- A reduction in the duration of the AVO;
- Adding orders to the AVO;
- Deleting orders from the AVO;
- Amending existing orders of the AVO.
Revoking an AVO means cancelling the orders of the AVO, making it unenforceable against the defendant.
The process to revoke an AVO is quite different to the process of varying an AVO, so it is important to discuss with your lawyer which option best suits your circumstances.
Once an AVO has been made, it can be varied or revoked pursuant to Section 73 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
Who can vary an AVO?
An Interim or Final AVO can be varied by an 'interested person'. An interested person is defined under Section 72 of the Act to include:
- The police;
- Any protected person on the AVO;
- A guardian of a protected person who is a child;
- The defendant;
- The Secretary of the Department of Family and Community Services.
If you are served with a Provisional AVO issued by police and all the PINOPs are adults, then either the defendant or police can apply to vary the AVO.
If the protected person on a provisional AVO is a child (any person under the age of 16) then the defendant cannot apply to vary an AVO pursuant to Section 33A of the Crimes (Domestic and Personal Violence) Act. In order to change the conditions, the provisional AVO must be made interim before a variation application can be filed.
It is always advisable to obtain legal advice from specialist AVO lawyers if you wish to vary an AVO. The legislation and requirements are intricate and complex and often applications are dismissed if they are not filed properly.
Reasons to vary an AVO
Reasons to vary an AVO include:
- A change of circumstances;
- if the court is satisfied that in all the circumstances it is proper to do so;
- if the protected person is a child, that it is in the interests of justice.
Most commonly an application to vary an AVO can be made to respond to the changing nature of the PINOP and defendant's relationship.
Under Section 74 of the Crimes (Domestic and Personal Violence) Act 2007, a court may refuse to hear the application to vary or revoke an AVO if there has not been any change of circumstances since the last order was made and the application is in the nature of an appeal.
How to vary an AVO
You can vary an AVO by:
- completing an 'Application to Vary or Revoke Apprehended Violence Order' form;
- filing the form with the relevant Local Court;
- serving the form on the police and any other relevant parties;
- attend the Local Court on the date your case is listed and arguing why the AVO should be varied.
The 'Application to Vary or Revoke Apprehended Violence Order' form is not available online. However, an experienced AVO lawyer can draft this form and file it with the relevant court. Your lawyer will also be able to serve a copy of this application on the police officer in charge of your case and the police prosecutors.
If the defendant has bail conditions, then they will usually have to also make an application to vary their bail conditions. This is because bail conditions are often the same as AVO conditions. If only the AVO conditions are varied, then a defendant can still be in breach of their bail conditions. A copy of this application must also be served to the police officer. You can read about how to vary bail conditions here.
To vary or revoke a Provisional or Interim AVO, the application should be filed at the court which is hearing your case. To vary or revoke a Final AVO, you don't need to go to the same court that made your AVO, you can apply to any Local Court in NSW. The court you apply to will generally hear your matter once the form has been approved.
Once the application is filed successfully, the court will provide a listing date to hear the matter or to make orders for both parties to file evidence. This date is usually set to be within a month.
How Long Does an AVO Last?
An AVO usually lasts for two years. It can run for a longer or shorter period if one of the parties applies for this.
Section 79 of the Crimes (Domestic and Personal Violence) Act 2007 states that, "the court has discretion to enforce the APVO for "as long as is necessary to ensure the safety and protection of the protected person." If the court fails to stipulate the duration of the APVO, Section 79 of the Act lists the default period as 12 months.
Section 79A of the Crimes (Domestic and Personal Violence) Act 2007 gives the court discretion to make a final ADVO for a period of time that it deems fit. If the court cannot determine an appropriate length for the ADVO to remain in force the default period is:
- 12 months if the application was made before 28 March 2020, or
- Two years if the application was made after 28 March 2020
Indefinite AVOs
An indefinite AVO is an Apprehended Violence Order which runs forever. Section 79B allows an ADVO made after 28 March 2020 to be made for an indefinite period of time if the following criteria are met:
- The applicant has sought an indefinite ADVO, or
- The defendant is 18 years or older, or
- There are circumstances which give rise to a significant or ongoing risk of death or serious harm to the PINOP and any defendants.
Reducing the length of an AVO
If the protected person no longer needs the AVO because of a change of circumstance, you can reduce the length of the AVO by applying to Court. If the opposing party objects to the application then both parties may be ordered to prepare written statements to explain why the AVO should not be reduced. The application will then be listed for a hearing where both the PINOP and the defendant will be permitted to give oral evidence in court. If the applicant is successful in showing that the required changes have been made, then the application will be successful[6].
It is important to seek legal advice before you apply to reduce the AVO. Legal advice or legal representation may help in deciding on what steps to take in the future depending on the unique position of each individual. It is also advisable to seek legal advice if the AVO is indefinite or made to continue after the defendants release from jail.
Extending an AVO
You can apply to extend an AVO at any time until the last day it is active. The most common reason to extend an AVO is if the defendant has breached the existing AVO.
If you apply to extend the AVO, it will stay in force until the applicant goes to Court to get it legally extended. If the application is made the day before the AVO expires, it will stay in force for the next 21 days unless another order is made or the AVO is revoked.
If the defendant objects to extending the AVO, the court can set down a timetable for the PINOP and the defendant to prepare written statements explaining why the AVO should or should not be extended.
The application will then be heard in court where the PINOP, defendant and any witnesses will give oral evidence in court. The Court must be satisfied that the extension is necessary for the continued protection of the PINOP from the defendant.
Revoking an AVO
You can revoke an AVO by applying to a Local Court. Once you file the application you will receive a court listing – usually within a month.
Some common reasons to ask for an AVO to be revoked include:
- A change in circumstances that makes the AVO unnecessary;
- The PINOP does not have fears from the defendant;
- The AVO places disproportionate restrictions on the defendant.
Some consequences of an AVO include that is that the defendant cannot hold a firearms licence for 10 years. Restrictions may be placed on their ability to work in the security industry. In the scenario that the defendant wants to obtain a firearms licence or wants to work in the security industry, they may apply for the AVO to be revoked to limit the restrictions that are being placed on them.
The defendant needs leave (permission) of the Court to apply to revoke an indefinite AVO and the PINOP will be notified of the application. If the PINOP objects to the application, they can submit a written statement to the court explaining why the AVO shouldn't be revoked.
The application will then be heard in Court where the defendant, protected person(s), applicant and/or witnesses may provide oral evidence.
It is important to note that revoking an AVO is a different process to withdrawing an AVO.
Serving an Application
If the defendant applies to vary or revoke an AVO, they must serve a copy to each of the protected persons under the order. The two types of AVO's are:
- Police AVO
- Private AVO
Each AVO requires a different process. For a police AVO, it must be served to the Local Area Command (LAC) of the police who applied for the AVO.
For a private AVO, the application must be served directly on the PINOP.
If you are unsure who to serve the application on, a specialist AVO lawyer can provide advice.
If an application has been made to vary or revoke an AVO by the PINOP, then a copy of the application should be served on police and the defendant. The police may serve the application to the defendant on behalf of the PINOP if they are unable to or if the defendant is in jail.
The application must be served correctly otherwise the court will refuse to vary or revoke the AVO.
What if children are on the AVO?
In the case that the PINOP is a child (anyone under the age of 16), the interested party must seek the leave (permission) of the court when making an order to vary the AVO according to Section 72B of the Crimes (Domestic and Personal Violence) Act 2007. The court will grant leave provided they satisfy one of the following three conditions:
- There has been a significant change in circumstances since the order was made (or was last varied), or
- The application is proposed to be made by the Secretary of the Department of Family and Community Services on the basis that a care plan (in line with the definition provided in the Children and Young Persons (Care and Protections Act 1988)) for the child is inconsistent with the police-initiated order or
- It is in the interests of justice to vary the order.
Under Section 40A of the Crimes (Domestic and Personal Violence) Act 2007, the court must notify the Commissioner of Police and the Secretary of the Department of Family and Community Services (FACS) before it varies or revokes an order when the PINOP is a child.
