
Can I cancel an FVRO or VRO that was issued against me?
Many persons who find themselves subject to either an interim Family Violence Restraining Order (FVRO) or Violence Restraining Order (VRO) end up in a situation where the order should, in fairness to the bound person, be cancelled. This can occur where, for example, the protected person keeps contacting the bound person, encouraging them to breach the order and indicating there is no need for them to be protected by it. Or, where the protected person indicates to the bound person that they no longer want the order.
Despite the order needing to be cancelled, it is common for a bound person to allow the order to continue. This is unsatisfactory because it places the bound person in a situation where they can breach the order and be charged with an offence, despite the protected person clearly not wanting or needing its protection. Given that breaches of an FVRO or VRO result in mandatory imprisonment for a third offence, this is incredibly risky for the bound person.
It is however possible to cancel an FVRO or VRO in these circumstances, and the process is outlined below.
1. Application for leave by bound person
A bound person must first lodge an application for leave to cancel the restraining order, to the court that made the order. The application must be accompanied by an affidavit setting out the reasons for cancelling the order. This process is essentially a ‘triage’ process which aims to filter out applications to cancel that have no merit. The court will either grant leave to continue with the application, or dismiss it.
There are only three criteria which will enable a court to grant leave to continue with the application to cancel the restraining order. These are:
- there is evidence to support a claim that a person protected by the order has persistently invited or encouraged the applicant to breach the order, or by his or her actions has persistently attempted to cause the applicant to breach the order; or
- there has been a substantial change in the relevant circumstances since the order was made;
or - in respect of an application to vary an interim order, there is evidence to support a claim that the restraints imposed by the order are causing the applicant serious and unnecessary hardship
and that it is appropriate that the application is heard as a matter of urgency.
The application for leave is typically heard in the absence of the protected person. The affidavit in support of the application must contain cogent evidence that one of the above circumstances applies to the case. This firm has had success in obtaining leave in a case involving the first criteria, which involved filing an affidavit with over 100 pages of SMS messages sent by the protected person to the bound person, which encouraged and invited the protected person to breach the terms of the order.
The second criteria might apply in a case where parties to a restraining order have reconciled and resumed their relationship.
The third criteria is likely to apply in cases where a person either cannot work due to the restraining order, or is forced to move out of their only accommodation.
2. Hearing of bound person’s application to cancel restraining order
If the court grants leave, a hearing will be listed to determine the application. The protected person will be summonsed to the hearing.
At the hearing, the court can either cancel the restraining order, or make a replacement order with appropriate variations. The court may also dismiss the application if it is not satisfied it is appropriate to make any changes to the restraining order.
As with any other restraining order application, if successful an application for costs may be made, but the bound person must establish that the application for the FVRO or VRO by the protected person was ‘frivolous or vexatious’. The court may find this if, for example, the protected person repeatedly encouraged the bound person to breach the order, and by that conduct demonstrated they never required the protection of the restraining order.
3. Ex parte application to cancel restraining order by protected person
A protected person may also make anĀ ex parte application to cancel a restraining order that protects them. That is, in the absence of the bound person. Such an application does not require the court to grant leave to continue with it. Further, it may be made without any valid grounds being proffered for the cancellation.
Unfortunately, the ability to do this can be used as a weapon in litigation involving a restraining order. A classic example is where a protected person cancels the interim restraining order protecting them shortly before the final order hearing, which determines whether the order should be granted or not. This causes the bound person to suffer a significant costs penalty, as well as the time spent in preparing to defend the matter at trial. Again, an application for costs may be made in these circumstances.
Conclusion
In certain situations, a bound person may make an application to cancel an FVRO or VRO. There are strict criteria which must be met in order to be successful with any such application. If you require expert and advice and representation regarding an application to cancel a restraining order, don’t hesitate to contact James Jackson Criminal Defence today.