Can a final avo be changed
Under section 72 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), after a final AVO has been made, an applicant, protected person or defendant may apply to vary or revoke (cancel) the AVO. If any of the protected persons on the AVO are under 16, only the police can apply to vary the order.
An AVO can be varied to impose greater or lesser restrictions on the defendant, including adding, deleting or amending orders, revoking or extending the duration of the order. A private application for variation can be made in the Local Court through the registrar. It needs to set out the proposed variations and the reasons for them. If there are multiple protected persons, special notification provisions apply.
Police must serve the application for variation or revocation on the other person named in the AVO. No variation can be made until service has taken place. A magistrate will only allow a variation or revocation of the AVO if it is proper in all the circumstances to do so. A magistrate can decline to hear an application to vary or revoke an order if they are satisfied there has been no change in circumstances since the order was made or if the application is in the nature of an appeal against the order. An example of when a protected person may want to vary an AVO is if they want to live with the defendant again but still have the protected of the mandatory orders.
Appeals, annulments and review
A defendant has a right of appeal to the District Court against having an AVO made against them (Crimes (Domestic and Personal Violence) Act 2007 (NSW), section 84 and Crimes (Appeal and Review) Act 2001 (NSW), Part 3). The application must be made within 28 days (or within three months with leave (permission) of the District Court). There is a legal presumption that an AVO will continue for the person’s protection until an appeal has been decided.
If an AVO was made against a defendant in their absence, the defendant can apply to the Local Court to annul the order. The defendant must show the Local Court that their non-attendance was due either to:
- not being aware of the proceedings until after they were completed, or
- being hindered by accident, illness or misadventure or other cause.
In the alternative, they can argue it is in the interests of justice to grant the annulment application. The application for annulment must be made within two years of the making of the AVO.
If a magistrate dismisses an AVO application, the applicant or the protected person may apply to the District Court for a re-hearing of the matter within 28 days. Any re-hearing in the District Court is based on what was said in the Local Court (the transcript) rather than new evidence being called from witnesses, unless the District Court gives permission to present fresh evidence.