A common situation faced by lawyers, Police and the Courts is when a defendant or complainant asks how to get an AVO dropped.
Often the defendant and protected person will have resolved the situation. Or the anger and acrimony between them has subsided.
Many people think that it is as simple as the complainant saying they no longer want the AVO and the proceedings are dismissed.
However, the law doesn't work that way.
When police initially apply for an AVO, they will usually impose a provisional AVO. This means that the conditions of the order become enforceable as soon as it is served on you.
Under Section 34 of the Crimes (Domestic and Personal) Violence Act 2007, this provisional order will become an interim order after the first court date. Again, the conditions of an interim AVO will remain enforceable while the case is ongoing.
However, an interim order can be opposed or revoked.
Section 22 of the Crimes (Domestic and Personal) Violence Act 2007, requires the Court to be satisfied that an interim AVO is, "necessary or appropriate in the circumstances".
If the court is not satisfied of at least one of these, then the interim AVO can be dismissed. Alternatively, the conditions of an ADVO can be varied. A common example is varying an AVO to allow the parties to have contact pursuant to a parenting plan.
Conversely, if the Court is of the view that the interim order is 'necessary or appropriate', then it will be made. An interim ADVO will remain in force until the case is finalised. At this stage the order will either be dismissed or become a final AVO.
In order to argue that the interim order should not be made, evidence will need to be presented. This will involve witnesses being called and cross-examined from both the prosecution and defence. It may also involve tendering documents to the Court.
An experienced AVO lawyer will be able to determine what evidence should be presented and also cross-examine the prosecution witnesses. They will also be able to persuade the Magistrate why an interim ADVO should not be made.
What if the protected person doesn't want the interim AVO?
A common situation is where both the Defendant and the PINOP do not want the interim AVO.
Unfortunately, even if this is the case the interim order can still be made. This is because Police are the party who have applied for the AVO. As such, only the Police or a Magistrate have the power to revoke the interim AVO or vary the conditions. Recent statistics published by BOSCAR show which areas of NSW have the highest per capita rates of AVOs being made.
The protected person does not have the ability to vary or revoke the order by themselves. This can often lead to a defendant think that the protected person is breaching the AVO.
How to vary an interim AVO
In order to vary an interim AVO you will need to file an AVO variation application with the Court and serve it on Police. If you are also on bail, you will need to file a bail variation application so that the AVO conditions and bail conditions are not conflicting.
Once this is done you will obtain a court date from the relevant court registry. On the Court date you will have to attend court and present any evidence including calling witnesses.
Usually people will take on a specialist AVO lawyer for this process as it is quite complex and requires the ability to speak well in court.
Steps to get an AVO dropped
Often both the protected person and defendant want to know how to get an AVO dropped completely. The following steps should be used:
- The protected person obtains independent legal advice. This cannot be the defendant's lawyer. It also cannot be someone from the same firm as the defendant's lawyer
- This independent lawyer can prepare a letter or statement on behalf of the protected person asking for the AVO to be dropped;
- The Defendant's lawyer must draft and file 'representations' with Police for the withdrawal of the AVO;
- Police will generally take 6 weeks determine whether to withdraw the AVO or not
Under Section 16 of the Crimes (Domestic and Personal) Violence Act 2007, the Court can make an ADVO if they are satisfied on the balance of probabilities that:
"a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears—
(a) the commission by the other person of a domestic violence offence against the person, or
(b) the engagement of the other person in conduct in which the other person—
(i) intimidates the person or a person with whom the person has a domestic relationship, or
(ii) stalks the person,
being conduct that, in the opinion of the court, is sufficient to warrant the making of the order."
What are 'Representations'?
Representations are detailed legal submissions, prepared by a lawyer and sent to Police. They can be used to withdraw an AVO as well as vary the conditions on an AVO.
They can also be used to withdraw criminal charges such as common assault or assault occasioning actual bodily harm. Alternatively, a fact sheet can be amended through the use of representations.
Can the protected person withdraw an ADVO?
As explained above, police are the applicant on most ADVO applications. This means that even if a protected person does not want the case to go ahead, Police can still continue with the application.
In fact, police have a policy not to withdraw domestic violence charges or ADVO applications unless there are good reasons. That the complainant does not want proceedings to continue is not considered a good reason by itself.
There are regular examples of Police applying for an AVO even when the protected person does not give a statement. Officers will often rely on their own observations, any initial 000 calls, CCTV footage or a combination of factors.
The NSW Police Domestic and Family Violence Code of Practice explains in detail that even when a protected person does not want an ADVO and/or criminal charges laid, police can go against these wishes.
Further, police are not to withdraw charges or an ADVO simply because the complainant later indicates that they do not want proceedings to continue.
Why is this policy in place?
The policy of not withdrawing AVOs or charges was a response to a number of well-publicised incidents of abusive partners attacking victims shortly after criminal charges or AVOs were withdrawn.
But what is the reasoning behind it? It was intended to protect victims who defend their abusers, despite having been subjected to domestic violence and in spite of the danger that they are in.
However, a natural side effect of the 'one size fits all' policy is that ADVOs that should be withdrawn can linger in the Court lists for months before being dismissed. This leads to greater time and expense for all stakeholders.
Applications where the allegations are trivial, or there is no admissible evidence, or where there are false AVO claims can cause a defendant to have his or her liberty restricted for a lengthy period of time. Accused persons may have concerns about the AVO and a defendant's rights.
How to drop a private AVO
Unlike Police AVOs, private AVOs are far easier to withdraw. If the protected person in a private application wants to withdraw the AVO, they will be able to.
Where Police apply for a private AVO, this will also be far easier to get dropped than an ADVO.
Defending an AVO?
Today, domestic violence charges and ADVOs are very common. There have been a number of recent cases of AVOs being withdrawn and/or dismissed after retaining experienced criminal defence lawyers. You can read some of those cases here.
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.