29 November 2019
Apprehended violence orders – Statements, evidence and revocation
I am acting for the defendant in an apprehended domestic violence order application made by the police.
1. Can the defendant apply for a withdrawal of application if a signed statement by the person in need of protection (PINOP) is not served in accordance with the directions?
2. Should the defendant apply to revoke an expired apprehended violence order or are they automatically revoked when they expire?
Thank you for the question.
1. No. The statement of the police is sufficient to ground the application, however the PINOP’s statement is the evidence that supports and will, if accepted, ground the order being made. The Practice Note requires both parties to file and serve their evidence by a certain date and this becomes the evidence in chief. If the statement is not filed and served in accordance with that requirement, then the application will fail at the hearing because there will be no evidence to ground the orders sought. The respondent could then apply to strike out the application, but it may be unnecessary as the court will likely dismiss the proceedings if the application is not supported by evidence. However, an application may be made for leave to adduce additional evidence in the form of the PINOP’s statement, and the court will consider the reasons for the late evidence in determining whether to allow it.
2. Apprehended violence orders are not automatically revoked upon expiry and, since 2016, it is not possible to revoke an expired order.
Regards
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