Can You Revoke an Expired AVO in NSW?

An Apprehended Violence Order (‘AVO’) is a court order which seeks to protect a person from another person who causes them to fear for their safety, by imposing certain conditions.

There are two types of AVOs being ‘domestic’ (which can be imposed upon people such as a spouse, ex-partner, or family member) or ‘personal’ (which can be imposed upon people such as a neighbour, co-worker, or friend).

An AVO can be ‘private’ in the sense that they are initiated by the person seeking protection, or it can be initiated by the police.

A police AVO will usually accompany criminal charges, and whilst the charge and the order sought are separate legal proceedings, they can and often do run together at court.

Notably, a police AVO may also be stand-alone, in that it is not accompanying any criminal charges.

As a private AVO has been sought independently of the police, it will usually not accompany any criminal charges.

AVOs are essentially civil proceedings and are not considered ‘criminal’. However, it may become a criminal proceeding where the AVO is breached.

A person who knowingly contravenes a prohibition or restriction in an apprehended violence order made against the person faces a maximum penalty of 2 years imprisonment and/or a $5,500 fine.

The legislation governing AVOs is the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Condition 1 is a mandatory condition that will appear on all AVOs, which details that the defendant must not do any of the following to the protected person/s or anyone that they have a domestic relationship with:

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

Additional orders that may be sought include orders about contact which will state: ‘you must not approach the protected person or contact them in any way, unless the contact is through a lawyer.’

They may also include orders about where you cannot go, whether you can be in someone’s presence after consuming drugs or alcohol, or orders about family law and parenting.

Final AVOs imposed by the court can last for ‘as long as is necessary, in the opinion of the court, to ensure the safety and protection of the protected person’ as per section 79 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

If the court fails to specify a period in the order, the order remains in force for a period of 12 months after the date that the order is made.

In practice, the court will impose a final AVO for a period of 6 months to 2-years.

After the prescribed period ends, the order and its contained conditions will no longer be in force.

Applications to vary (change or remove its conditions) or revoke (completely get rid of) a final AVO may be made under Division 5 of the Act, specifically sections 72A and 73.

The court may decline to hear an application in respect of an order, if it is satisfied that there has been no change in the circumstances on which the making of the order was based, as per section 73(3).

Therefore, it is important that such a change in the circumstances is highlighted.

Whilst it may seem counterintuitive to apply to revoke an order which has already expired, there are numerous reasons why a person may want to do so.

This may include potential impacts on a Working with Children Check, where the AVO is made for the protection of a child.

It may also include for the purposes of obtaining a firearms licence.

This is due to how section 11(5)(c) of the Firearms Act 1996 (NSW) prevents a person who has been subject to an AVO within the 10-year period from which an application has been made from obtaining a firearms licence, unless the AVO has been revoked.

The recent case of Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71 explored this issue, and it was ultimately held that the court cannot revoke an order that has expired.

Robert Wass was seeking to obtain a permit under the Firearms Act 1996 (NSW) but was unable to due to a final apprehended domestic violence order that had been imposed for a period of 12 months.

After the AVO had expired, Wass applied for it to be revoked. The Local Court dismissed his application, and the District Court dismissed his appeal.

Wass then brought proceedings in the Court of Appeal seeking judicial review of the District Court decision.

The main issue was ultimately whether an application could be made to revoke an apprehended violence order after it had expired, with the Court holding that this could not be done.

In its decision, the Court reviewed the procedural history of the Act.

Prior to 2016, the Crimes (Domestic and Personal Violence) Act 2007 (NSW), explicitly allowed for an expired order to be revoked, with specific criteria set out.

However, a subsequent review of the Act recommended that this be removed, with this recommendation followed by the government.

Those in support of the change included the Chief Magistrate at the time who stated: “the fiction enabled by such provisions is an affront to the legitimacy surrounding the making of the original order”.

In the review, the NSW Police Force noted that there is ample provision for a defendant, PINOP (‘person in need of protection’) or police to apply to revoke an AVO while it is in force.

Despite the removal of the provisions which explicitly allowed for the application, section 72A still states that ‘an application may be made to a court at any time.’

Wass’ main argument was that ‘at any time’ would include after an order’s expiry.

However, the Court viewed this phrase in light of its context and found that it did not allow for an application to be made after an order has expired.

This is due to how construction of the word in this sense conforms with its use elsewhere in the Act and how it aligns with the purpose of amendments which removed the explicit power.

Therefore, it was held that the power to ‘vary or revoke’ an order is to be construed as confined to a power to vary or revoke an unexpired order.

This decision highlights the importance of ensuring any application is made during the order’s term for those who wish to have it revoked once an AVO is made final.

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