Can the Police Take Out an AVO: Exploring the Possibility
Can the Police take out an AVO they have applied for the PINOP? The answer is yes; they can, but it depends upon the circumstances.
Note that in the Code of practice for the NSW Police Force response to Domestic and Family Violence, when the Police apply for an AVO to protect a victim, they have adopted a policy prohibiting the withdrawal of AVO petitions unless there are compelling reasons to do so.
Typically, the Police will take six weeks to evaluate whether or not to withdraw the AVO.
Steps On How to Get an AVO Dropped
Read our step by step guide on how to get an avo dropped, or read the below summary:
- Get independent legal counsel as the protected individual (PINOP). To avoid conflict of interest, the lawyer and their firm shouldn't be in any way related to the defendant. It should be a law firm with knowledgeable AVO attorneys.
- For the protected individual, have the independent attorney write a letter or statement asking for the revocation of the AVO. The letter should describe the circumstance and the current state of the relationship between the two parties.
- The defendant's lawyer must then create and file "representations" with the Police to withdraw the AVO. A competent AVO attorney will carefully craft police withdrawal requests.
- Give the police time to consider whether or not to withdraw the AVO. If the application is already in court, the proceedings may need to be postponed to allow the police time to evaluate your arguments.
- If the representations are accepted, your AVO will be removed. If they're not taken, the Police may wish to continue with the investigation. When this happens, you will need an experienced AVO lawyer to negotiate or dispute the AVO's terms in court.
In rare cases, if Police fail to comply with court orders to serve their evidence on time, the court may dismiss the AVO.
Typically, the court will schedule a final hearing and give the Police ample opportunity to submit their evidence before that day.
The court may also dismiss an AVO if the protected person fails to appear at the scheduled court hearing.
However, you should bear in mind that not attending court date can result in an arrest warrant.
Can A PINOP Withdraw an AVO?
The Police make most AVO applications. Can the Police take out an AVO even if the PINOP says otherwise? The answer is yes.
The most important thing to remember is that the Police are the ones who decide for the AVO. This means that the Police or a Magistrate are the only ones who can withdraw the AVO.
The PINOP can't vary or revoke the order on their own.
But they can talk to their domestic violence officer and ask them to pressure the Police to get rid of the AVO.
They can also hire a private AVO lawyer who can help them write a letter to the court to get the AVO withdrawn.
Is it Easier to Drop a Private AVO?
Yes. Private AVOs are much easier to drop than AVOs from the Police.
In a private application, if the PINOP wants to withdraw the AVO, they can.
When the Police ask for a private AVO, getting this dropped will also be much easier than an AVO.
Can a Defendant Challenge an Interim AVO?
Now that you know the answer to the question: Can the Police take out an AVO?
The next thing you need to know is: Can a Defendant Challenge an Interim AVO?
If someone with whom you have a domestic relationship or the Police on that person's behalf applies for an ADVO against you, you may be given an interim or short-term ADVO until the case is resolved.
An interim ADVO only stays in place until the official decision is made.
You can go to court and ask for the interim ADVO to be lifted.
It is often challenging to argue against an ADVO, and most of the time it is not worth the time and expense to challenge an interim avo.
Both sides must show proof of their case, and the magistrate or judge will decide if the ADVO will be granted.
Even when domestic abuse is suspected, it is vital to highlight that the NSW Police often take a strong stand against it.
Your case may be strengthened by demonstrating that the other party is not at risk of violence, stalking, or harassment or proving that the other party intentionally misled the Police or court out of malice, revenge, or other purposes.
Also, if neither party was present when the ADVO was issued - for instance, if a police officer requested an AVO on behalf of an alleged victim against their will - it is possible to file an appeal, which could result in the Order being revoked.
Conclusion
Can the Police take out an AVO they have applied for the PINOP? The answer is yes; they still can, but it depends upon the circumstances.
Note that in the Code of practice for the NSW Police Force response to Domestic and Family Violence, when the Police apply for an AVO to protect a victim, they have adopted a policy prohibiting the withdrawal of AVO petitions unless there are compelling reasons to do so.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
