One might wonder what would happen to the person in need of protection (PINOP) if they were to breach the AVO they filed.
AVOs restrict only the defendant’s behavior. As we know, breaching an AVO is a criminal offence. However, since the order is merely there to protect the protected person, they cannot breach the AVO, as it does not affect them.
Can a Protected Person Breach the AVO They Filed?
A protected person can’t be charged with breaching an AVO they filed but they can still face the consequences if they are deliberately breaching the AVO conditions they filed.
- If the PINOP violates the AVO, it might undermine their case against the defendant and result in the court revoking the AVO. The court may decide to withdraw the AVO if it determines that the victim does not have a reasonable fear of the defendant or if the defendant has misbehaved. This can be a serious blow to the protected person, as the AVO no longer offers legal protection.
- Like the defendant, the PINOP may suffer legal consequences if the AVO is violated. This may involve fines or jail time, depending on the gravity of the violation.
- The credibility of the victim may suffer if an AVO is violated, especially if they are pursuing the order against the defendant. The court may see the protected person’s conduct as hypocritical, making it more difficult for them to acquire an AVO in the future.
- If the protected individual repeatedly violates the AVO, the police may no longer offer protection. This is because the police may perceive the PINOP as not taking the order seriously or as someone who is abusing the AVO for personal gain.
Can the Protected Person Contact the Respondent?
Generally speaking, yes, the protected person still can. The orders in an AVO are on the respondent, not the victim. However, it is crucial to consider any specific conditions in the AVO as there might be an order prohibiting communication with the PINOP. By reaching out, the PINOP could potentially assist the defendant in breaching the AVO.
It really comes down to the AVO conditions stipulated in the order. Remember that there are mandatory and additional conditions in an AVO. Talking to the defendant is NOT part of the mandatory conditions.
The AVO does not impose any charges on the person in need of protection for contravening it. Nevertheless, repeatedly violating their own AVO carries legal consequences and may involve the intervention of the police or the courts.
What If The AVO Was Violated With The Protected Person’s Consent?
In the Code of Practice for the NSW Police Force response to domestic and family violence, it is said that an AVO cannot be breached by a defendant, even with the victim’s consent.
Compliance with the order is always the defendant’s responsibility.
A victim may apply to the court to remove a condition on an AVO or have the entire order revoked if they want the AVO removed.
It is important to note that person in need of protection named on an AVO are not liable for aiding and abetting the breach of it.
When an AVO is breached, the police are encouraged to charge the defendant.
Alternatively, the police may ask the court for a variation if they believe the relationship between the parties has changed and that different conditions should be placed on the AVO.
Applications may be filed to strengthen or remove conditions on order based on the circumstances.
What to Do If the Protected Person Harasses the Defendant?
A defendant subject to an AVO may contact the police if they feel the PINOP is harassing them. In such cases, the police may charge the protected person with offences such as stalking, intimidation, or using a carriage service to menace, harass, or insult.
A PINOP may attempt to harass the defendant with the intention of provoking a breach of the order. This situation can lead to imprisonment.
- It is important to keep a record of any incidents of intimidation committed by the protected person. This includes any threatening texts, phone calls, or in-person contacts. These records will be crucial if it becomes necessary to report the actions of the protected person in court.
- If the defendant feels threatened or intimidated, promptly notify the police. They can conduct an investigation and offer guidance on how to proceed. They can also take action against the protected individual if they violate the AVO.
- Seek for a modification of the AVO: If the PINOP’s conduct makes it challenging to comply with the AVO, the defendant may be entitled to request a variation of the order. A variation can alter the terms of an order to make it more workable for both parties.
- If the defendant is experiencing trouble complying with the provisions of the AVO owing to the protected person’s actions, seek legal assistance. A lawyer can offer advice and, if necessary, represent the defendant in court.
It is crucial to take action to defend oneself if the defendant feels threatened. This may involve changing phone number, barring access to the protected person’s social media accounts, or even relocating.
Who Can File To Revoke or Vary An AVO?
The ADVO can be varied or revoked by a police officer or an interested party.
Definition of Interested Party
- Those who are protected by the order
- A guardian of a victim under the Guardianship Act 1987 who holds an enforceable guardianship order
- For a child who is protected under the order: – each parent, – the Department of Family and Community Services,
- The defendant
Courts must only hear applications for variation or revocation of police-initiated orders if they are satisfied that the police have been notified.
Police will handle applications for variation or revocation if they submit them on the victim’s behalf.
In the NSW Police Force Response to Domestic and Family Violence Code of Practice 64, the police will not actively participate in proceedings that oppose the variation or revocation of a police-initiated order.
Suppose the protected person is making the application against police advice. In that case, the police prosecutor will not be able to assist them, and they may indicate that they oppose the application to the court.
Parental Application for Varying or Revocation of AVO for a Child
It would require the court’s permission for an interested party to apply to vary or revoke the original ADVO if the police made the application.
Factors Considered for Granting Leave
- Changes in circumstances have been significant.
- In order to make the ADVO consistent with a care plan, the Department of Family and Community Services proposes this application.
- Other reasons for doing so are in the interests of justice.
Leave must not be granted if the court believes that, if successful, the application would significantly increase the risk of harm to the children.
Need an Experienced Lawyer to Apply for AVO Varying or Revocation?
Providing legal advice and assistance to the community is important to us so that individuals and families can receive the support and protection they need.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.