“Justice delayed is justice denied.” William Glastone (1868)
This article is intended to make it easier for defendants and others to prepare and file applications to vary or revoke Apprehended Domestic Violence Orders (NSW) (“AVO”).
Applying to vary or revoke an Apprehended Domestic Violence Order can be a complex exercise. I strongly recommend anyone wanting to make an application to get legal advice before going ahead.
The first step to apply to vary or revoke an AVO is to use the correct form. At the date of publication, the correct form is: (select)
Complication No. 1
The form sets out the matters the court requires information about before the application will be accepted and listed for court.
Does the application in question name a child as a person in need of protection?
Importantly on page 1, the form refers to section 72B of the Crimes Domestic and Personal Violence) Act 2007. In most cases, this means that if the current order names one or more children as a protected person, you will need ask the Court’s permission to make the application.
Permission to apply to vary or revoke
The Court may give permission if there has been a significant change in circumstances, or if it is in the interests of justice to do so.
The phrase “in the interests of justice” has a different meaning in each set of circumstances but usually includes notions of fairness, reasonableness, public interest, due administration of justice and other matters.
If you have to address this issue, list all the reasons why you think the Court should allow you to apply to vary the order. There will often be overlap between the application for permission and the application to vary or revoke.
Why do you think it would be reasonable for the court to grant the application?
You need to decide whether you are seeking to vary the order or revoke the order. If you only want the conditions to be changed, apply for a variation. If you want to get rid of the order entirely, apply for it to be revoked.
When listing the grounds for the application you will usually have to address the following questions,
- How long the order has been in force. The longer the better.
- Have there been any breaches of the order? If so, when and why?
- Will the person/s named as being in need of protection be put at greater risk if the application is successful? Explain…
- What harm or inconvenience is the current order having on the person making the application or other interested party. This is the how you inform the Court why it should grant the application.
Submitting/Filing applications
In my experience there is considerable variation between the different courts and what they require when an application is submitted/filed.
Always be polite to Registry Staff and listen to what they tell you. Registry Staff cannot give you legal advice, but they can usually tell you if there is a problem with your application and what the problem is.
If the Registry Staff identify any issues with your application, follow their instructions and resubmit/file it as soon as possible.
This is the start of the process…
Penrith Lawyers, 24/7, Advice when you need it most.
Jeremy L. McGrath – Principal Solicitor
Once you have completed the form, take it to the Local Court Registry where the order was made or is being heard. Provide the completed form to the Registry Staff and they will give you a date for it be mentioned in court.