Apprehended violence orders in NSW
Varying or revoking an AVO
An AVO is not fixed for its full term. It can be extended, shortened, tightened, loosened or cancelled altogether, but only while the order is still in force and only if the court is persuaded that the change is proper in all the circumstances.
The short version
What varying and revoking actually mean
Varying an AVO means changing it. The period can be extended or reduced, conditions can be added, existing conditions can be reworded, and conditions can be removed. Revoking an AVO means cancelling it entirely, so that no order remains on foot.
Both interim and final orders can be changed this way. A final apprehended domestic violence order usually runs for a fixed period set by the court, commonly two years, and where no period is specified the default is two years for an adult defendant and one year where the defendant was under 18 when the application was first made. Some orders are made for an indefinite period, and those are dealt with separately below.
Timing decides everything
An order can only be varied or revoked while it is still in force. Once an AVO expires there is nothing left for the court to change, and revocation is no longer available at all. This matters most to defendants dealing with the firearms and licensing consequences, because those consequences follow an order that was made and never revoked, and they cannot be undone after the order lapses.
It is not enough to file before the expiry date. If the application is still on foot when the order runs out, there may be no order left to revoke. Where a listing is likely to run past the expiry date, the order itself needs to be extended so that it survives long enough to be dealt with.
Scope
What the court can change
- The length of the order. The period can be extended or reduced.
- The conditions. Existing prohibitions and restrictions can be amended or deleted.
- Additional conditions. New prohibitions and restrictions can be added, usually where the protected person needs more protection than the order currently gives.
- Who the order protects. Where there is more than one protected person, the order can be changed for all of them or for only some of them.
- The order as a whole. It can be revoked, which ends it completely.
Where an order protects several people and the application is made by one of them, the others are not affected unless the court is satisfied that each of them is at least 16 and has consented to the change.
Standing
Who can apply
The person the order is against
Usually seeking to reduce the conditions, shorten the order or have it revoked. The application cannot succeed unless notice has been served on every protected person under the order.
The person the order protects
Often seeking to extend the order, add conditions, or relax a condition that has become impractical, for example where the parties need to communicate about children or a property settlement.
A police officer
Police can apply in their own right, most commonly to extend an order or add conditions after a breach or a further incident. Where the order was police initiated, the Commissioner must be notified of any application.
Guardians and the Department
A guardian of a protected person can apply, and so can the Secretary of the Department of Communities and Justice where a child is involved.
An application must set out the grounds relied on and, if it seeks a variation, the exact change sought. Vague applications are the most common reason a matter is adjourned before it is even reached.
The test
What the court has to be satisfied of
The court may vary or revoke an order if satisfied that it is proper to do so in all the circumstances. That is a broad discretion, and in practice it turns on whether the protection the order provides is still needed, and on what has changed since the order was made.
An application is not a second bite at the original hearing
The court can refuse to hear an application at all where there has been no change in the circumstances the order was based on and the application is really an appeal against the order in another form. If the complaint is that the order should never have been made, that is an appeal to the District Court, and different time limits apply.
What tends to persuade the court
- Genuine change. Time has passed, the relationship has ended or resumed on a settled footing, treatment has been completed, living arrangements have changed.
- Compliance. No breaches, no further incidents, no further charges.
- The protected person’s position. Their views carry real weight, although they do not decide the application and the court will look at whether the position is freely held.
- Workability. Conditions that make agreed parenting arrangements or a court ordered handover impossible are commonly narrowed rather than removed.
- Proportionality. Conditions that go further than the protection actually requires.
Police often oppose applications that reduce the reach of an order, particularly where the order was police initiated. That does not decide the outcome, but it does mean the application needs to be evidenced rather than simply asserted. Raising it with the domestic violence liaison officer at the relevant station before filing is usually worthwhile.
Process
How an application is made
Get the form from the registry
The application to vary or revoke an apprehended violence order is not published online. It is completed at a Local Court registry, and registry staff will help you fill it in, although they cannot advise you on your grounds or your evidence.
File in the right court
If the order is an interim order, file in the court that currently has the matter. If the order is final, any Local Court in New South Wales can deal with it, and it will usually be heard where it is filed rather than back at the court that made it.
Set out the grounds
State what has changed since the order was made and identify precisely which condition or period you want altered. Where revocation is sought, the grounds should address why protection is no longer required at all.
Serve the application
Service is a precondition, not a formality. Where the order was police initiated, the application goes to the police who applied for it. Where it was a private application, it is served on the protected person. A defendant’s application cannot succeed unless every protected person has been given notice.
Prepare the evidence
Statements from the parties, and where relevant material about completed programs, treatment, parenting orders or employment requirements. If the application is contested the court will usually set a timetable for written statements before a hearing date is given.
Attend the hearing
The registry will give you a date, often on the court’s domestic violence list. Attend it. Applications are regularly dismissed simply because the applicant did not appear. Where the matter is contested, the parties and any witnesses give oral evidence.
Extending
Extending an AVO
An application to extend can be made at any time up to the last day the order is in force. The usual reasons are a breach of the existing order or further conduct that shows the protection is still needed.
- The order does not lapse while the application is pending. Filing before expiry keeps the order alive until the court decides the application, including where the application is filed at the last minute.
- The defendant can object. The court will then set a timetable for written statements from both sides before listing the matter for hearing.
- The question is continued need. The court must be satisfied that the extension is necessary for the protected person’s continued protection.
Breaching an AVO is a criminal offence in its own right and is dealt with separately from any extension application. See contravening an AVO.
Revoking
Revoking an AVO
Revocation ends the order. It is filed at a Local Court and is usually listed within about a month, on the court’s domestic violence list day, unless there is a reason to bring it on sooner.
Common grounds
- Circumstances have changed so that the order no longer serves a purpose.
- The protected person no longer holds any fear of the defendant and says so.
- The order restricts the defendant out of proportion to any remaining risk.
Firearms and licensing
A firearms licence cannot be issued to a person who is subject to an AVO, or who has been subject to one at any time in the previous ten years, unless that order has been revoked. Revocation is the only thing that lifts it. Letting the order run its course does not, and neither does the passage of time until the full ten years has gone by.
Security industry licensing is assessed on whether the applicant is a fit and proper person, and an AVO is relevant to that assessment. Anyone whose livelihood depends on either licence should be dealing with revocation while the order is still on foot, not afterwards.
The licence cannot be the reason for the application, however. The court’s power exists to protect people, and an order is not to be revoked for the substantial purpose of relieving a defendant of the licensing consequences. Your interests are a relevant consideration, but the application has to stand on whether protection is still needed. The licence is what follows from the answer, not the argument for it.
The suspension and revocation of an existing licence, the surrender of firearms, how the ten years is counted and what has to happen before you can hold a licence again are all set out on our page on AVOs and firearms licences.
Indefinite orders
Some apprehended domestic violence orders are made without an expiry date. A defendant subject to an indefinite order needs the court’s leave before an application to vary or revoke it can even be made. Leave is granted only where there has been a significant change in circumstances since the order was made or last varied, or where it is otherwise in the interests of justice. The protected person is notified and can put a written statement before the court opposing it.
Children
Where a child is protected by the order
Where the order was applied for by police and one of the protected persons is a child, an interested party needs the court’s leave before making an application about the order. Leave can be granted where there has been a significant change in circumstances since the order was made or last varied, where the Secretary of the Department of Communities and Justice applies on the basis that a care plan for the child is inconsistent with the order, or where it is otherwise in the interests of justice.
The limit on leave
Leave will not be granted if the court considers that the application, if it succeeded, would significantly increase the risk of harm to the child. This requirement applies to police initiated orders protecting a child. A private order, or a police order that protects only adults, does not attract it.
Related powers
Two situations where the court acts on its own
Variation on sentence
Where a defendant pleads guilty to, or is found guilty of, a serious offence, the court can vary an existing final or interim order at that point to give the protected person greater protection. This happens in the criminal proceedings, without any separate application. See domestic violence offences.
Parenting orders
A Local Court making or varying an AVO can also vary, suspend or discharge a parenting order to the extent it would require contact that the AVO prohibits. It is the mechanism that stops the two orders contradicting each other. See parenting arrangements.
Choosing the right application
Vary, extend, revoke or appeal
| What you want | The application | Key requirement |
|---|---|---|
| Conditions changed, added or removed | Variation | A change of circumstances, and service on every protected person |
| The order to last longer | Variation extending the period | Filed before the order expires, and continued need for protection |
| The order to end early or be cancelled | Revocation | The order must still be in force, and protection no longer required |
| The order set aside because it should never have been made | Appeal to the District Court | Lodged within the appeal period, not run as a variation |
An application that is really an appeal dressed as a variation can be refused a hearing outright, so the choice at the outset matters.
Interstate orders
Varying a domestic violence order made in another state
Domestic violence orders made elsewhere in Australia are recognised and enforceable in New South Wales, and a NSW court can deal with an application to change one. Before it does, it will consider matters including:
- Where each of the parties normally lives.
- Any difficulty the defendant would have attending court.
- Whether there is enough information available about the original order.
- Whether proceedings for a breach of the order are already on foot.
- Whether it would be practical for the protected person to apply for a local order instead.
- The effect on any children protected by the order.
Where it is practical, filing in the state or territory that made the order is usually the better course, because that court holds the file.
Common questions
Frequently asked questions
Can I revoke an AVO that has already expired?
No. Once the order has run its course there is no order left to revoke, and the application cannot be made. This is the single most important point for anyone dealing with the firearms consequences of an order, because those consequences are lifted by revocation and by nothing else.
The protected person wants the AVO removed. Is that enough?
No, although it carries weight. The court decides whether the change is proper in all the circumstances and will consider whether the position is freely held, particularly where the order was applied for by police. Applications supported by the protected person still fail where the court is not satisfied the risk has gone.
Do I have to go back to the court that made the order?
Not for a final order. Any Local Court in New South Wales can hear it, and it will usually be heard where you file it. For an interim order, file in the court that currently has the matter.
What happens if I do not serve the application properly?
The court will not vary or revoke the order. Service is a precondition. Where the order was police initiated the application goes to the police who applied for it, and where it was a private application it goes to the protected person.
Can conditions be relaxed so we can co-parent?
Often, yes. Conditions are commonly narrowed to allow contact for the purposes of arrangements for children or as permitted by a parenting order, rather than removed altogether. It is one of the more straightforward variations to run where both parties are cooperating.
Will the police oppose my application?
Frequently, where the application reduces the reach of a police initiated order. It is not fatal, but it means the application has to be supported by evidence rather than assertion. Raising it with the domestic violence liaison officer before filing is often worthwhile.
How long does it take?
An uncontested application can be dealt with on the first return date, typically within about a month of filing. A contested application will be adjourned for statements and then listed for hearing, which adds months. Build that delay into the timing where the order has an expiry date approaching.
Do I need a lawyer?
You can file yourself and registry staff will help you complete the form, but they cannot advise you on your grounds or your evidence. The grounds, the evidence and the service are what decide these applications. Where a licence, a job or time with your children turns on the outcome, it is not the place to find out afterwards what the court needed to see.
Get advice before you file
Talk to us about the order you have
Send us a copy of the AVO and tell us what you need changed and why. We will tell you whether the application is worth running, what evidence the court will want to see, who has to be served and what a realistic outcome looks like. We act for defendants and for protected persons in AVO matters in Local Courts across New South Wales.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Open Monday to Friday 9am to 5pm and contactable outside those hours.