How do you get an AVO dismissed?
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Quick Answer
An AVO in NSW can be dismissed by successfully defending the application at a hearing, or by having the applicant withdraw it beforehand through formal representations.
In both cases, the person seeking the order must prove the legal grounds under section 16 (ADVO) or section 19 (APVO) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), and if they cannot, the application fails.
What the Applicant Must Prove
An AVO is a civil order, not a criminal charge, so the standard of proof is the balance of probabilities, not beyond reasonable doubt. The applicant must satisfy the court of specific things before an order can be made:
- The protected person has reasonable grounds to fear, and in fact fears, that the defendant will commit a personal violence offence, or engage in intimidation or stalking
- The conduct in question is serious enough, in the court’s opinion, to justify making the order
Actual fear does not always need to be proven. This applies where the protected person is under 16, has an appreciably below-average intelligence function, or has already been subjected to a personal violence offence by the defendant on more than one occasion.
If the applicant cannot establish these elements, the application does not succeed.
Ways to Get an AVO Dismissed Before a Hearing
Most AVOs reach a defended hearing. Withdrawal before that point typically happens through one of the following:
- Representations to police or the prosecution. A formal written request, usually prepared by a lawyer, setting out why the application should be withdrawn, often supported by a retraction statement from the protected person
- A case conference. A negotiation between the parties following representations, where withdrawal is discussed directly
- Non-appearance by the applicant. If the protected person fails to attend a mention or the hearing without good reason, the court can strike out the application
Private AVO applications are generally easier to withdraw than police-initiated ones. Police apply a cautious approach to withdrawing applications, particularly where children are named as protected persons, due to concerns about withdrawing protection too readily.
Defending an AVO at a Hearing
If the application is not withdrawn, it proceeds to a defended hearing. Both sides serve their evidence in advance, and the matter is listed once that process is complete.
At the hearing, the applicant must prove the section 16 or 19 grounds on the balance of probabilities. The defendant, usually through a lawyer, tests this evidence by cross-examining the protected person and any other witnesses.
The judge then makes one of two findings:
- The application is dismissed, and any interim AVO ends immediately
- A final AVO is made, with conditions the court considers necessary
An interim AVO made earlier in the process is assessed on a different, lower test, whether it is “necessary or appropriate” pending the final hearing. Contesting the interim order at that stage is also possible, though the order can still be made even where both parties oppose it.
If the AVO Has Already Been Made Final
A final AVO is not automatically permanent. A defendant can apply to the Local Court to vary or revoke it, but the application must show a change in circumstances since the order was made.
Extra requirements apply in some cases:
- If the protected person is under 16, only police can apply to vary or revoke the order
- If the order is an indefinite ADVO, the defendant needs the court’s leave, granted only where there has been a significant change in circumstances or it is otherwise in the interests of justice
A court can refuse to hear the application at all if it considers there has been no genuine change in circumstances.
Costs
Costs are not automatically awarded to a successful defendant. Section 99 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) limits when a costs order can be made:
- Against a private applicant, only if the application was frivolous or vexatious
- Against police, only if the officer applied knowing the application contained false or misleading information
Outside these circumstances, each party generally bears its own legal costs, even where the AVO is dismissed.
Final Thoughts
An AVO in NSW is dismissed either because the applicant withdraws it, most often after representations, or because the applicant cannot prove the section 16 or 19 grounds at a defended hearing. A final AVO can still be challenged afterwards through a variation or revocation application, though this requires showing a genuine change in circumstances rather than re-arguing the original decision.
Frequently Asked Questions
What does the applicant have to prove to get an AVO?
That the protected person has reasonable grounds to fear, and in fact fears, a personal violence offence, intimidation, or stalking by the defendant, and that the conduct is serious enough to justify the order.
Can an AVO be withdrawn before it goes to a hearing?
Yes. This is the most common way an AVO is dismissed, usually through formal representations to police or the applicant, sometimes supported by a retraction statement.
Is it harder to get a police-initiated AVO withdrawn than a private one?
Generally, yes. Police apply a cautious approach to withdrawal, particularly where children are protected persons, compared to private applications between the parties.
What happens if I successfully defend an AVO at a hearing?
The application is dismissed, and any interim AVO in place ends immediately.
Can I get my legal costs back if the AVO is dismissed?
Only in limited circumstances, such as where a private application was frivolous or vexatious, or where police knew the application contained false or misleading information.
Can a final AVO be changed or cancelled later?
Yes, through an application to vary or revoke, but this requires showing a genuine change in circumstances since the order was made, not simply disagreement with the original decision.
Does an AVO show up on a criminal record?
No. An AVO is a civil order, not a conviction. Breaching its conditions, however, is a criminal offence.
If your matter is urgent, call (02) 8084 9929 today to arrange a free initial consultation.
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