How to Vary the Conditions of an Apprehended Violence Order in New South Wales

Apprehended Violence Orders in New South Wales, or AVOs, are ostensibly a means by which to ensure the safety of a person at risk of personal or domestic violence is protected.

However, there are instances whereby a person against whom an AVO is made – known as the defendant – has their ability to go about their day-to-day lives, or attend to important affairs, unjustifiably restricted through the imposition of conditions that are more onerous than they need to be.

In such cases, it may be beneficial and indeed in the interests of justice to amend or delete unnecessarily burdensome AVO conditions.

This article seeks to provide pragmatic advice on varying AVO conditions.

Mandatory AVO conditions

The first thing to be aware of is that AVOs come with certain compulsory conditions, which are that the defendant must not do any of the following to the protected person (also known as the ‘person in need of protection’, or PINOP) or anyone with whom the protected person has a domestic relationship:

• assault or threaten them,
• stalk, harass or intimidate them, or
• intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of them.

These conditions are mandated by section 36 of the Crimes (Domestic and Personal Violence) Act 2007 (‘the Act’) and cannot be varied.

Additional AVO conditions 

Courts in New South Wales have the power to impose what are commonly referred to as additional AVO conditions.

In that regard, section 35 of the Act empowers a court to impose such prohibitions or restrictions on the defendant as appear necessary to ensure the safety of the protected person and any children from domestic or personal violence.

Such additional conditions include but are not limited to:

• directly or indirectly contacting the protected person, other than through a lawyer, 
• approaching the protected person,
• approaching or entering a specified location such as the protected person’s home or workplace,  or the place they attend for study or childcare, 
• attempting to locate the protected person, except as ordered by a court, and
• possessing firearms or prohibited weapons.

Additional conditions are subject to being varied; in other words, amended or deleted, on application by the protected person, by the defendant, or by a lawyer on the defendant’s behalf.

The duration of the AVO is also subject to variation.

Legal and practical context

Before explaining the steps in seeking to vary additional AVO conditions, it is important to bear in mind that AVO proceedings are civil and not criminal in nature; although they are sometimes described as ‘quasi criminal’ due to the grounds of complaint bearing resemblance to criminal conduct, and the fact AVOs often accompany criminal charges such as assault and/or stalking or intimidation offences.

This means decisions regarding AVOs are made ‘on the balance of probabilities’ (also known as a ‘more likely than not’ test) and that material can be handed-up to a court in statement form, rather than necessarily having witnesses take the stand and testify.

It is also important to expect that police officers in charge of AVO proceedings, as well as domestic violence liaison officers (or DVLOs, who act as intermediaries between parties) and police prosecutors, will be less than helpful with those seeking to vary an AVO, whether that party be the protected person, defendant or lawyer on the defendant’s behalf.

This is particularly the case when it comes to Apprehended Domestic Violence Orders, or ADVOs, and stems from the tough or ‘overly cautious’ stance taken by the police in recent years when it comes to domestic and family violence related proceedings.

It is equally important to expect that a magistrate may be reluctant to hear an application to vary an AVO on the first day it is listed before the court. 

This is often because magistrates will have a long list of cases to deal with and simply will not have enough time to hear the application on the day. They will therefore routinely be minded to adjourn the case to another day and set a specific period of time aside for it to be heard.

To increase the prospects of an AVO application being heard on the first court date, it is important to seek to have the matter scheduled on the day the court normally heard AVO cases and to follow the steps outlined below regarding the preparation, filing and service of materials.

Legislation enabling the variation of AVO conditions

The sections of the Act which enable the variation of AVO conditions include:

• Section 33 for variations of a provisional AVO (also known as a ‘telephone AVO’) on the application of a police officer,
• Section 33A for variations of a provisional AVO on the application of the defendant, 
• Section 73 for variations of an interim AVO (one which applies between court dates) or final AVO (which applies on finalisation of the case) where there is one protected person, and
• Section 74 for variations of an interim AVO or final AVO (which applies on finalisation of the case) where there is more than one protected person.

Form of application for varying AVO conditions

A form to apply to vary an AVO can be obtained in person from any Local Court Registry.

Alternatively, a General Form under the Uniform Civil Procedure Rules can be downloaded and edited accordingly, inserting details that are relevant to the particular application including:

• The title of the application: Application to Vary Apprehended Violence Order, 
• The court in which the application is being made,
• The section of legislation under which the application is being made, 
• The parties, 
• The requested variation/s, and
• The grounds for the application.

Formal requirements

Section 33 of the Act enables a police officer who made a successful application for a provisional AVO on behalf of a protected person to apply to vary the AVO conditions provided that notice of the variation application is served on the defendant and each protected person.

Section 33A of the Act enables a defendant against whom a police officer successfully applied for a provisional AVO on behalf of a protected person to apply to vary the order if there has been a ‘change in circumstances’ since the initial order was made, and a notice of the application has been served on each of the protected persons.

Similarly, section 73 of the Act makes clear a court may hear an application made by a defendant to vary an interim or final AVO if there has been a change in circumstances and a notice of the application has been served on each of the protected persons.

The section also requires any variation application by a protected person to be served on the defendant.

Section 74 of the Act provides that if a variation application has been made by one protected person in respect of an interim or final AVO which applies to more than one protected person, none of the other protected persons can be subject to the variation/s unless the court is satisfied they are at least 16 years of age and have consented to the application.

Section 72B of the Act requires any interested party to seek the leave (permission) of the court to make an application for an AVO variation where the protected person is a child.

Leave may be granted if there has been a ‘significant change in circumstances since… [initial] the order was made’ or the interests of justice so require. The court is not to grant leave if the application would significantly increase the risk of harm to the child.

Matter considered by the court

Section 17 of the Act provides that when making decisions regarding AVOs, the court is to consider the safety and protection of the protected person and any affected child.

The section stipulates that such decisions are to take into account:

• The effects and consequences of the defendant residing or accessing premises in which he or she normally resides,
• Any hardship caused by making or not making an order, and/or
• The needs of all parties.

The section further provides that in the context of an ADVO, the court must only impose prohibitions and restrictions on the defendant that are necessary to protect the safety of the protected person/s and any affected child/ren, and nothing more onerous than that which is required to achieve that objective.

Supporting information

To increase the prospects of AVO conditions being varied (and indeed the hearing being dealt with expeditiously), it is imperative to prepare materials which focus on the considerations outlined in section 17, as well as file the materials in court and serve them on all parties in advance of the first court date; at least three business days before the day of court is ideal.

Such materials should include a statement by the defendant and/or the protected person, as well as any supporting documentation.

Supporting statement

The supporting statement/s will ideally be headed ‘Statement of [the person’s name] followed by a paragraph that makes it clear the information is being given freely; so, something like:

‘1. This statement made by me accurately sets out the evidence that I would be prepared, if necessary to give in Court as a witness. The statement is true to the best of my knowledge and believe that I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false, or do not believe to be true.’

This should be followed by a sentence containing the name, date of birth and standing of the person making the statement; the standing meaning whether the person is the defendant or protected person in the proceedings.

Next should be two or three paragraphs containing information about the person’s background, field and place of study and/or employment, source of information /means of support and other background information giving the magistrate an idea of the person before him or her.

This should be followed by information about the condition/s sought for variation and the reasons for seeking the same, such as the hardship caused in terms employment, study, accommodation, relationships and/or curricular / day-to-day activities.

The section 17 matters should be addressed in such a way that the magistrate has confidence the variation sought is beneficial to all parties, or at least not adverse to the interests of the protected person or any children involved, particularly that it would not result in an increased risk to safety.

The statement should not go into any detail regarding the conduct resulting in the AVO being granted, instead focusing on present hardship, the fact it could be rectified by the proposed variation and that the change would not be adverse to those whose safety needs to be protected.

It should equally not contain information disparaging to the police or courts, even if the person believes they are being treated unfairly.

If the statement is being provided by the protected person, it is a good idea to include a sentence to the effect that he or she would be prepared / undertakes to report any further incident to the police.

The statement should not be written in formal legal language, but that of the person who is providing it.

It will need to be signed and dated, but unlike an affidavit or statutory declaration does not have to be witnessed.

Supporting materials

Documents which verify the claimed hardship, such as employment agreements, tenancy agreements or official or court documents, or that attest to the unlikelihood of a variation adversely impacting on the protected person or children involved can further increase the likelihood of the variation application succeeding.

In the lead-up to court

Having said that police and others involved in the proceedings are often reluctant to agree to a variation, it may still be a good idea to make contact, calmly and cordially explain why the change is being sought, invite any questions or potential compromise, and essentially be on good terms with all involved.

In the event the variation remains opposed, remaining level-headed and cordial can subdue the court submissions of the opposing party.

At court

Whether the application is heard on the first court date or a date thereafter, it is a good idea to liaise in a calm and professional manner with the domestic violence liaison officer, police prosecutor and, in the case of an application by the defendant, the protected person’s lawyer (if he or she has one), for the reasons stated above.

The magistrate will need to be persuaded there has been a change of circumstances since the AVO was made, which justifies the application for variation.

If so persuaded, the magistrate will read all of the materials before either inviting further submissions, asking questions or indicating a preliminary view.

Any additional submissions should be succinct and on point, avoiding rehashing the contents of the submitted materials; after all, the magistrate only has a limited amount of time to consider the matter.

And needless to say, answers to questions asked by the magistrate should be responsive and concise.