Family violence can be physical, sexual, psychological or financial — a protection order means an abuser can be arrested if they hurt, threaten or even approach you or your children.
Once your protection order is granted, the person named in the order must not:
- physically, sexually, psychologically or financially abuse or threaten you, your children or other people you name in the order
- encourage anyone else to abuse or threaten you, your children or anyone named in the order
- send you any digital messages, for example, text messages.
- damage or threaten to damage your property.
A Protection Order establishes conditions (rules) that the abuser, better known as the Respondent, must not breach. If the Respondent breaches any of the conditions in the order, they can be arrested and charged by Police with a criminal offence.
Non- violence conditions include:
- Do not abuse or threaten to abuse (physically, sexually, psychologically or financially) the person(s) protected by the order
- Do not damage, or threaten to damage the protected person’s property
- Do not encourage anyone else to abuse or threaten the person(s) protected by the order
Non-contact conditions include:
- Do not have any contact with the protected person(s) and any children of the protected person(s)
- Do not go to the protected person’s home, workplace or school or hang around where the protected person(s) goes often or regularly
- Do not follow the protected person(s) or try to stop the protected person(s) from coming or going anywhere
- Do not phone, text, email, send letters, fax or contact the protected person(s) in any other way
- If a Protection Order is made the Respondent must hand over any firearms or weapons, and any firearms license will be suspended. The court may allow the Respondent to retain a firearms license but they would need to be satisfied that the victim would be safe.
- In most cases, the Respondent would be required to attend an approved nonviolence programme to help them live without violence. It will be a breach of the Protection Order if the Respondent does not attend the programme sessions unless excused by the programme provider.
To apply for a Protection Order you need to be in a family relationship with the person being violent. The Family Violence Act 2018 defines “family relationship” as:
- A spouse or partner
- A family member
- Someone who ordinarily shares a household
- Someone with a close personal relationship i.e. carer
In determining a close personal relationship, the court will have regard to the duration of the relationship and the nature and intensity of the relationship, in particular:
- The amount of time spent together
- The place or places where that time is ordinarily spent
- The manner in which that time is ordinarily spent
- If you are not in a family relationship with someone who is being violent towards you then you can apply for a Restraining Order (discussed below).
The Family Violence Act 2018 also allows someone to make an application for a Protection Order on behalf of someone else in certain circumstances. These circumstances are:
- For a minor under 16 years of age (16 years of age and over can apply for themselves)
- For a person lacking capacity
- For a person unable, whether by reason of physical incapacity or fear of harm, is unable to make the application themselves
If an application for a Protection Order is filed on behalf of a person lacking capacity or unable to apply for themselves, the representative must be an approved organisation that is authorised under the Act to do so. This is regardless of whether there is an Enduring Power of Attorney or Welfare Guardian in place.
An approved organisation must:
- Show that reasonable steps have been taken to ascertain the person’s views in relation to the organisation acting as a representative; and
- If the views of that person have been able to be ascertained, they must show:
- That the person does not object to the organisation acting as a representative; or
- That the person’s objection is not freely made; and
- Show that it is in the person’s best interests for the organisation to act as a representative; and
- Show that there is unlikely to be any conflict between the interests of the organisation and the person’s interests; and
- Includes an undertaking to be responsible for any costs awarded against the person in the proceedings.
However, if the person wholly lacks the capacity to communicate decisions in respect of matters relating to their personal care and welfare, then the approved organisation does not have to take reasonable steps to ascertain their views.
A Protection Order will protect the person who applied for the Order or the victim of the family violence. This person is called the Applicant. A Protection Order will also include all children of the Applicant under 16 years of age (it will also include 16 and 17-year-old children that are living with the Applicant).
If you have a protection order against someone and decide to let them back into your life, you can suspend the non-contact parts of the order — but not the non-violence parts. You must give consent to the person in writing — by email, letter, text, or other digital messages.
Consent cannot override any special conditions restricting contact such as supervised contact for a child or other no-contact conditions. You can withdraw consent at any time, it doesn't have to be in writing.
If you ask the Respondent to leave the non-contact provisions come back into effect immediately — they’re only ever allowed contact with you with your express consent as long as the order is in place.
The order can also be made to protect other people who need protection from the Respondent, like a new partner, older children or a flatmate. These people will be named in the order and will need to provide their consent to being included in the order.
A Protection Order can also protect the protected person(s) and their children from someone else who the Respondent has encouraged to be violent, for example, another family member. They are known as the Associated Respondent.
A person who wants protection from family violence will usually apply for a protection order through the Family Court. The application is free of charge.
A lawyer can help you with your application. They will:
- help you write your application
- take down your statement
- help you apply for free legal aid if you need it
- help you apply for a property order if you need it, to give you possession of your house — or your furniture if you’re going to move out.
There are two ways you can file a Protection Order application. These are:
- On Notice: Generally matters where there is no immediate danger. For example, perhaps there is a verbal argument that you are concerned may turn violent in the future.
- Without Notice: Most applications are without notice as there is either a real risk to the person(s) safety or risk of causing undue hardship for a person(s) if there is a delay in obtaining a Protection Order.
For on notice proceedings, the Respondent will be served a copy of the application and they will have 21 days to respond. If they choose not to respond, a Judge is likely to make a Final Protection Order against them. If they choose to respond and defend the application, the proceedings will go to a hearing where a Judge will listen to the evidence from both sides and decide if a Protection Order should be issued.
For without notice proceedings, a Judge will determine whether a Temporary Protection Order is necessary on the day of filing without hearing any evidence from the Respondent. If a Temporary Protection Order is granted, the Respondent will be served (given) a copy of the application and the Temporary Protection Order. They will have 21 days to respond. If they choose not to respond, the Order will become final in three months (the Applicant does not need to do anything further). If they choose to respond and defend the application, the proceedings will go to a hearing where a Judge will listen to the evidence from both sides and decide if a Protection Order should be issued.
However, the Criminal Court can also make a Protection Order to protect victims from family violence. The Criminal Court can make:
- A Temporary Protection Order if someone breaches a Police Safety Order
- A Final Protection Order if someone is convicted of a family violence offence, for example, male assaults female
A Final Protection Order will last until either the Applicant or the Respondent applies to the court to discharge it. The court will not discharge it unless it is satisfied that the reasons for the Protection Order are no longer an issue and the violent person is no longer a risk.
- If a Protection Order is breached the Respondent will be arrested and retained for at least 24 hours by Police.
- The victim’s safety is paramount when considering bail applications.
- The maximum penalty for breach of a Protection Order is three years in prison. However, if the breach involves other areas of crime then the punishment could be more severe.
- If the Respondent is ordered to attend a nonviolence programme and breaches this condition, they can receive a fine of $5,000 or be imprisoned for up to six months.
- It is a criminal offence to breach a Protection Order and every breach should be reported to the Police.