What is a protection order?
A protection order is issued to protect individuals from family violence. You can apply to the Family Court for one if you have experienced or are at risk of family violence from a family member, partner, or ex-partner. Once granted, a protection order requires the respondent (the person the order is made against) to refrain from certain behaviours, such as contacting or harassing the applicant (the person seeking protection). The respondent will also be required to stay away from the applicant’s home, work, or other specified places, unless the applicant consents to them being there. Protection orders can cover not only the applicant, but also their children and others named in the order.
What constitutes family violence?
Family violence is not just physical abuse. It can include:
- Physical abuse: Acts of physical harm or threats.
- Sexual abuse: Unwanted sexual contact or threats.
- Psychological abuse: Intimidation, harassment, controlling behaviours, or financial abuse.
- Emotional abuse: Verbal threats or demeaning language.
Family violence also includes repeated minor actions that together create a pattern of control or harm.
How do I apply for a protection order?
You can apply for a protection order in two ways:
- Without notice (urgent): This application is made in genuine emergencies for immediate protection. The Family Court can grant a temporary protection order without hearing from the respondent first if the evidence filed by the applicant in support of their application establishes a serious risk of harm or undue hardship from which immediate protection is warranted without delay.
- On notice (non-urgent): The respondent is notified of the applicant’s application and is given a copy of it before any orders are made.
If applying without notice, it’s essential to provide all relevant information. Failure to fully disclose facts could result in the order being overturned and penalties for non-disclosure.
What types of protection orders can be issued?
Protection orders can be temporary or final:
- Temporary protection orders: These are issued urgently after a successful without notice application. In rare cases, the court may issue a temporary protection order without a formal application, such as when family violence is identified during Care of Children Act 2004 proceedings.
- Final protection orders: These remain in effect indefinitely until the court cancels them. They continue to protect you unless the court determines they are no longer necessary.
What conditions apply to protection orders?
A protection order may include several conditions for the respondent, such as:
- Prohibiting any form of family violence.
- Preventing contact with the applicant unless permitted by the applicant. The applicant can give and withdraw consent for contact at any time.
- Requiring the respondent to surrender any weapons to the Police.
Protection orders can also cover children and other family members affected by the violence.
Is the respondent required to attend a non-violence programme?
If a temporary protection order is made without notice, the respondent will be directed to attend a non-violence programme. However, the respondent may object to attending the programme within 10 working days of being served with the temporary protection order. If no objection is filed, the respondent is obligated to attend the programme, and failure to do so may result in penalties.
What additional orders can be made under the Family Violence Act 2018?
In addition to a protection order, an applicant may apply for the following:
- Occupation Order: This allows the applicant to remain in the family home, whether owned by one or both parties, while excluding the respondent. This can only be granted after a protection order is made.
- Tenancy Order: This allows the applicant to take over the lease of a shared rental property, excluding the respondent. Like an occupation order, it requires a protection order to be in place.
- Furniture Order: This grants the applicant possession of household furniture, appliances, and other chattels in the home or rental. This can only be issued if an occupation order or tenancy order is granted.
These orders are often granted when children are involved to ensure a stable and secure living environment for both the children and the applicant. Occupation or tenancy orders may also be issued to support education or employment needs. When considering an occupation or tenancy order, the court takes into account the reasonable accommodation needs of others affected by the order, such as the respondent.
Applications for these orders are typically made alongside a protection order. If a temporary protection order is issued without notice, the court will then move to consider any applications for occupation, tenancy, or furniture orders. In other words, if you are seeking these orders, you submit applications for them at the same time as the submission of your protection order application.
How is the respondent served with a temporary protection order?
When a temporary protection order is made, the respondent is served by the Police. The Family Court Registrar promptly sends the order to the District Commander of the appropriate Police district. The Police then serve the respondent with:
- A copy of the protection order.
- An explanation of the order’s effect.
- A notice outlining the Family Court process.
- A copy of the application(s) and any supporting affidavits.
- The applicant’s information sheet.
The Police may also take steps to carry out standard conditions on the order, such as uplifting firearms or the respondent’s firearm’s licence.
How can the respondent respond to a protection order application?
If you are served with a temporary protection order, you can:
- Object to attending a non-violence programme by filing a notice within 10 working days, as discussed above.
- Object to the temporary order being made into a final order by filing a notice and affidavit within 3 months.
If no response is filed, the temporary protection order will automatically become a final protection order after 3 months. If notices are filed, a hearing will be convened to determine whether the temporary protection order should be made into a final protection order.
What happens at a final protection order hearing?
At a final protection order hearing, the applicant, respondent, and any witnesses present their evidence, which may include testimony, documents, or other relevant information. Both parties and the witnesses are questioned by the lawyers and the judge. After questioning is completed, the court carefully reviews all the evidence and considers arguments from both sides before making a decision on whether to grant a final protection order. A final protection order will usually be granted if there has been family violence, and if the making of the order is necessary for the protection of the applicant. A final protection order hearing usually takes a few hours, or up to one day in some cases.
Who is present during the final protection order hearing?
A final protection order hearing is conducted with relative confidentiality. Those entitled to be present include:
- The applicant.
- The respondent.
- Lawyers for both parties.
- The Judge and Family Court staff.
- Support persons for the applicant.
- Any others the judge allows.
These individuals remain for the entire hearing. However, support persons can only observe and must not speak, signal, or react, or they may be asked to leave. In regard to other witnesses, they only enter the courtroom to give evidence and are then asked to leave.
Can the applicant give evidence without facing the respondent?
If the applicant feels unsafe or intimidated by the respondent, alternative ways to give evidence may be arranged. These include:
- Giving evidence from another room via video link.
- Giving evidence from behind a screen.
Such arrangements are made in rare instances, as the principle of natural justice requires the respondent to have the opportunity to challenge the applicant’s case directly, in person.
What other restrictions are placed on the respondent during the hearing?
If the respondent is representing themselves (i.e. they do not have a lawyer), they are generally not allowed to personally cross-examine (question) the applicant or any witnesses who have made allegations of violence against them. Instead, the court will appoint a lawyer to ask the respondent’s questions for the respondent. This is intended to prevent further intimidation or harassment during the proceedings.
Can children give evidence in protection order cases?
When children have been subjected to family violence, they may be interviewed by a specialist interviewer. These interviews take place separately from the hearing and are video-recorded. The parties are shown the videos to be informed of any allegations made by the children. The Family Court does not allow children to be questioned directly during the hearing.
Can I appeal the making of a protection order?
If either party disagrees with the court’s decision regarding a protection order, they can appeal the decision to the High Court. The protection order remains in effect while the appeal is being processed unless the court suspends it. Further appeals may be made to the Court of Appeal, but only on questions of law. The decision of the Court of Appeal is final.
When can a protection order be varied or cancelled?
A protection order can be varied or discharged (cancelled) if the court agrees that it is no longer necessary for the applicant’s protection. An application for discharge or variation is made, and the court assesses whether the order remains appropriate based on the current risks to the applicant or other protected persons.
What are the consequences of breaching a protection order?
Breaching a protection order is a criminal offence that can result in imprisonment for up to three years. If the respondent violates the terms of a protection order, they could face serious legal consequences.
Need help?
At Fixed Dispute Resolution, we offer fixed fee packages to help you apply for a protection order or respond to one. Our transparent pricing gives you certainty, and our experienced team is here to support you every step of the way. If you’re considering a protection order, or need advice on how to respond to one, get in touch with us today for a free initial consultation.