Revocation
One way to free your property from a restraining order is to apply for revocation of that order. There are two key bases for revocation. The first basis requires that there have been ‘no grounds’ for the making of the order in the first instance. This is a high threshold and requires that there were no grounds to make the restraining order at the time of the application.Secondly, a revocation application may be brought on the basis that it is in the ‘interests of justice’ to do so. This often relies on identifying issues in the investigation or application. If evidence was obtained illegally, or the court was misled by the applicants (usually police), revocation may be granted.
Importantly a revocation application must be made within 28 days of notification of a restraining order, and time extensions are extremely limited.
The basis of the exclusion varies depending on the type of order, however the most common includes; that the property was not obtained as a result of unlawful activity and that the property does not belong to the suspected person and is not subject to their effective control.
A restraining order may also be varied to allow for the reasonable living expenses of a suspected person, as well as their dependents, and reasonable business expenses.
Any restrained property not the subject of an exclusion application may be forfeited to the Commonwealth.
The next stage in the process is to defend the AFP’s application for forfeiture.
Strict timelines apply to the making of applications to prevent the forfeiture of property. It is critical that you consult a lawyer to ensure your property is protected.
Exclusion Orders
If a restraining order has been granted over a particular piece of property, or an application has been made by police but not yet granted, a person with an interest in that property may apply for its exclusion from the restraining order.The basis of the exclusion varies depending on the type of order, however the most common includes; that the property was not obtained as a result of unlawful activity and that the property does not belong to the suspected person and is not subject to their effective control.
A restraining order may also be varied to allow for the reasonable living expenses of a suspected person, as well as their dependents, and reasonable business expenses.
Any restrained property not the subject of an exclusion application may be forfeited to the Commonwealth.
The next stage in the process is to defend the AFP’s application for forfeiture.
Strict timelines apply to the making of applications to prevent the forfeiture of property. It is critical that you consult a lawyer to ensure your property is protected.
