Withdrawing an AVO
The only person who can withdraw an application for an Apprehended Violence Order is the applicant. This can be done in court at any point in the proceedings. If the matter is not listed for a number of months, the Local Court may relist the application for it to be withdrawn.
It is often the case that NSW Police apply for an AVO on behalf of a person. Where they do so, the person has no authority to simply withdraw the Apprehended Violence Order. That person can however speak or write to the police to formally request that police withdraw their application. The police do not have to comply with that request.
It is relatively uncommon for police to withdraw an application at the request of the protected person where the protected person has previously given a statement, or version of events to police, which alleges that the defendant committed an act of personal violence against them.
Persons who seek to have an application for an Apprehended Violence Order withdrawn by police should receive legal advice. This is particularly so if they are considering writing to police to ask them to withdraw the application, or if they are attending court.
If a person has lied to police, or if they give evidence that something they said to police was not true, was exaggerated or was fabricated, they may be charged with a criminal offence. The potential offences can be serious, with some carrying maximum penalties of imprisonment.
What Happens If The Applicant Doesn’t Attend Court?
In some cases, the applicant, protected person, or a witness for the applicant, will not attend court on their own volition. It is an offence for a defendant or other person involved in proceedings to interfere with a witness or attempt to pervert the course of justice.
If the applicant does not attend court, the Magistrate may dismiss the matter, or adjourn it to a later date for the applicant to attend.
Where a defendant doesn’t attend court:
- the court can make an interim (temporary) order and adjourn proceedings;
- the court may issue a warrant for a defendant, provided the defendant had notice of the date, time and place of the proceedings.
If the person in need of protection or a key witness for the applicant does not attend court, the court may:
- in the case of a police application, stand the matter in the list at court to allow the police to try and locate them.
- adjourn the matter to seek to have the person attend court, or, upon the successful application of the applicant, issue a warrant for their arrest (this is only likely to occur where the victim has been subpoenaed and has disobeyed the subpoena); or
- require the matter to proceed without them. If this occurs and the applicant offers no evidence or no direct evidence of any fears held by the protected person, the application will likely be dismissed (unless there is other compelling evidence justifying the making of an order).
If you require legal advice in relation to the withdrawal of an AVO or in any other legal matter please contact Armstrong Legal.