Protection Orders (Family Violence)

A protection order will restrict the respondent from having any contact with or your children (unless you agree to living with the respondent). The respondent will also have to attend a non-violence programme and will not be allowed to have firearms or other weapons.

Although a protection order is essentially ‘just a piece of paper’ as it relies on the respondent complying with it, having a protection order means that the Police will have more legal options if further violence occurs.

With a protection order, you do not need to wait until you have been harmed to contact the Police – you can do this as soon as the respondent breaches any of the conditions of the order. This means you are able to call the Police if the respondent comes near you, contacts you, or encourages anyone else to contact you in a way that contravenes the terms of the protection order.

In order to obtain a protection order against someone, the Family Court must be able to identify that three elements have been met:
1. There has been a family relationship between you and the respondent; and
2. There is family violence in the relationship (past or present); and
3. The making of a protection order is necessary to protect you and/or another person.

Family violence is not just physical and sexual violence, it also includes psychological abuse. Family violence must have been inflicted against someone by a person who is or has been in a family relationship with them. A single act of violence may be enough to obtain a protection order. Additionally, a number of acts that form a pattern of behaviour may be enough to obtain a protection order. This is the case even if those acts may appear to be minor or trivial in isolation.

While physical and sexual violence are usually easily identified, psychological abuse can be harder to spot. The following are examples of psychological abuse.

Harassment or intimidation including:
- following someone around, or stopping and confronting someone;
- watching, hanging around, or stopping someone from accessing a persons home, business, job or school/education institution, or any other place that someone visits often.

Damaging a person’s property

Treating pets or other loved animals poorly

Financial abuse such as:
- denying or limiting a persons access to money, or;
- preventing or restricting a persons employment opportunities, or;
- preventing access to education.

With children:
- causing a child or allowing that child to see, hear or experience the family violence inflicted against a person who that child has a family relationship with;
- allowing the child or putting that child at real risk of seeing or hearing that abuse.

Other non-physical violence behaviour
- taking away access to a persons aid, device, or medication that affects that persons quality of life due to age, a disability, health condition or any other cause.
- threats of physical or sexual abuse, or threats of the abuse described above.

A family relationship includes:
• those who are married;
• who are joined by civil union;
• are in a romantic relationship;
• those who share a household (but are not just flatmates), and;
• those who have a close personal relationship (but not an employee/employer relationship).

There are two way of applying for a protection order: Without Notice or On Notice. An application that is 'without notice' is an application that is urgent and will be considered by a Judge immediately and a protection order can be issued without notifying the respondent. An application that is 'on notice' is less urgent, so the respondent will be notified and given a chance to respond before the Court makes any decision.

If you are applying for a protection order 'without notice' you will need to provide evidence that it is necessary. If the Judge is satisfied that a delay would cause either undue hardship or a risk of harm, they will grant a Temporary Protection Order. If the Judge is not satisfied that the delay would cause this, they can order the application to continue as an “on notice” application.
If the respondent does not want to defend (challenge) the temporary protection order, it will automatically become a permanent protection order after three months. If the respondent does want to defend the temporary protection order, there will likely be a hearing where both you and the respondent are able to present your case to a Judge. From this hearing, the Judge will make a decision on whether a protection order is needed. If the Judge decides it is needed, a final protection order will be made. If they decide it is not needed, no protection order will be made.

If you apply 'on notice,' a Judge can’t make the protection order until the respondent has been given the opportunity to be heard on the matter. No temporary protection order is made while you wait for a the Court to hear your matter. If the respondent does not want to defend the application, you can ask the Court to make the protection order final. If the respondent does want to defend the application, the Judge will make a decision on whether a protection order should be granted following a hearing.