Changing an order that is already made

Variations

An apprehended violence order can be varied. The Crimes (Domestic and Personal Violence) Act 2007 (NSW) allows an application to be made to the court to change an order, including its conditions and how long it runs.

General information, not legal advice. This page sets out how the law generally applies. It does not take account of your circumstances, and you should get advice about your own situation before acting on it. The official sources this page is written from are listed on it; where they differ from anything here, they are the authority.

Who this page is for

The order no longer fits the life you are living

The reasons are practical. An exclusion covers an address you now need to attend for work. A condition about approaching a school no longer matches where the children go. A no-contact condition makes an arrangement about children unworkable in a way nobody anticipated when it was made. The order is not wrong, but it has stopped matching the facts.

Sometimes it is the other direction. A protected person may want a condition added or an order extended because something has changed. That application is made in the same way and is decided by the same court.

What is never the answer is deciding between yourselves that a condition no longer applies. An order is not a private agreement and it cannot be relaxed by consent outside a courtroom. People are charged with contravening orders that both parties had long since stopped treating as real, and the fact that the protected person agreed is not a defence.

If you are being asked to agree to a variation, take advice about what the new terms would mean before you agree. A variation makes a new set of conditions binding in exactly the way the original ones were.

How we help

What the work actually is

Working out whether a variation is the right tool

Sometimes the answer is a variation. Sometimes it is an application to revoke the order, and sometimes it is waiting until the order expires. We tell you which of those fits your situation before anything is filed.

Framing the change narrowly

Ask for the least that solves the problem rather than a general loosening. A change to a named address, a carve-out for an arrangement about children, or a condition about collecting belongings is a narrower request.

Preparing the material

The court needs to know what has changed and why the current condition creates a real problem. Employment records, tenancy documents, school arrangements and family law orders are the material that shows it.

Dealing with police and the other party

Where police applied for the order, their position matters. Where a private applicant is involved, they are entitled to be heard. Both are handled properly and through the court rather than by approaching anyone directly.

Making the interaction with family law work

Where parenting arrangements and an apprehended violence order have to sit together, the conditions need to be expressed so that both can be complied with at once. See where children are involved.

Appearing on the application

Making the application, appearing on it, and explaining the order that results, condition by condition, so you know exactly what changed and from when.

Questions

Questions people ask first

We have reconciled. Can we just ignore the order?

No. The order binds you whatever the state of the relationship and whatever the protected person says. If the conditions no longer match your lives, the answer is an application to vary or to revoke the order, decided by a court. Living together in breach of a condition is a criminal offence.

Can the protected person apply to change it?

Yes. A protected person can apply to the court to vary an order, and the court decides. Where police applied for an apprehended domestic violence order, the application is served on the Commissioner of Police, so police are on notice and can be heard. Where a protected person is a child, the Local Court Bench Book sets out that leave of the court is needed on a police-initiated order. Legal Aid NSW sets out how a protected person applies to vary or revoke an order.

Can I ask for the order to be shortened?

An application can ask the court to change how long an order runs as well as what it says. Whether that is realistic depends on what the order was made for and what has changed since. If you want the order to end altogether, that is an application to revoke it rather than to vary it.

Could applying make things worse?

It can. An application puts the order in front of a court, and a court asked to look at an order can add conditions or extend it as well as relax it. That is a reason to take advice on the prospects first, not a reason to live with a condition that is genuinely unworkable.

How long does an application take?

It is listed and dealt with by the Local Court, and the time depends on the court’s list and on whether the application is opposed. Plan on continuing to comply in the meantime, and if the problem is urgent — you cannot get to work, you have nowhere to sleep — say so when the application is made.

Do I have to go to court for it?

You or your lawyer will need to appear. An application to vary is a court application with the other party entitled to be heard, not a form that is processed at a counter.

The police applied for the order. Can I still apply to vary it?

Yes. Police having applied for the order does not shut you out of applying to vary it. The application is served on the Commissioner of Police, so police are on notice and their view is before the court, and the application should be prepared on that basis. Leave of the court is required in particular cases — Legal Aid NSW identifies an order made for an indefinite period — so check which applies to your order before you file.

What to bring

A variation application turns on the detail of what has changed. Bring the documents that show it rather than a summary of them.

Every page of the current order, including the conditions and the date it expires.
The condition you want changed, and exactly what you want it to say instead.
What has changed since the order was made, with dates.
Proof of the change: an employment contract, a tenancy agreement, a school enrolment, a medical appointment.
Any family law order, parenting plan or Family Court proceedings involving the same children.
Anything police or the other party have said about the change, in writing where possible.
Any previous application to vary this order, and what happened to it.
Any charge for contravening the order, whether or not it has been dealt with.