What is a Protection Order?
A protection order is an order made by a magistrate designed to prevent further violence or abuse. The aim of a protection order is to protect survivors of domestic violence (including dating violence), family violence and abuse in informal care relationships. Such orders are not aimed at breaking up relationships, but when necessary, extra conditions can be asked for on a protection order to stop an abuser from contacting you, living with you, or coming to your home or other places you frequent.

Children and relatives/friends who have had any violence or threats of violence directed against them can also be covered under a protection order, as well as children who have witnessed the violence (as this may be considered to be direct abuse against them).


Am I eligible for a Protection Order?
At present, to obtain a protection order you must be experiencing violence or abuse in any of the following relationships:

Spousal Relationship: People who are married, separated or divorced; or people of the same or opposite sex who are living together or have previously lived together as a couple; or people who are the biological parents of a child.
Intimate Personal Relationship: People who were or are engaged to be married to each other including a betrothal under religious or cultural tradition; or people who are, or were previously, dating and whose lives have become enmeshed
Family Relationship: People who are relatives of each other by blood or marriage such as a grandparent, aunt, uncle, step-parent, sibling, cousin or child; or the relatives of those who are in or have been in a de facto relationship; or a person it is deemed reasonable to regard as a relative. This is considering that for some people the concept of a relative may be wider e.g. people of Non-English Speaking Background, or Aboriginal and Torres Strait Islanders.
Informal Care Relationship: People where one person is or was dependent on another person (a carer) who helps the person in an activity of day to day living (personal care activities). This may include dressing, preparing meals or shopping. The personal care must be required because of a disability, illness or impairment. The care must be provided in an informal way and not involve the payment of a fee or care as part of an arrangement, for example in-home care nurses. A fee does not include a pension or allowance in the carer’s own name from the Commonwealth Government.


What is considered as violence when seeking a Protection Order?
A person does not have to be injured physically to be able to apply for a protection order. A person who has experienced all or any of the following behaviours from their abuser or by someone else on their abuser’s behalf, is entitled to apply for a protection order: Wilful injury (e.g. pushing, slapping, punching, kicking, pulling hair), Damage to property (e.g. damaging a car, deliberately smashing or throwing things in the house), intimidation and harassment (e.g. abusive telephone calls, constantly driving past the home, standing over you, screaming/swearing at you), indecent behaviour and threats to injure you or damage your property.

NB. Children and young people under 18 cannot be named in a protection order against family violence as either the abuser or the victim. If children and young people under 18 years old are experiencing family violence, it is considered a child protection issue, and the Department of Family Services should be contacted.


What conditions can be made in a Protection Order?
The two standard conditions on all protection orders are that:
1) The respondent (abuser) must be of good behaviour towards the aggrieved (abused) and not commit domestic violence
2) The respondent must be of good behaviour towards any named person in the order and not commit an act of associated domestic violence against the person.

A number of other conditions can be asked for, including:
No contact with the aggrieved or any named person
Not to come to where the aggrieved or any named person lives, works or studies
Not to commit a specific act of violence
That the respondent must vacate the residential premises of the aggrieved (in other words, leave the home).


Can Protection Orders be changed or stopped?
A protection order can be changed (varied) or stopped (revoked) by applying to the court. The person trying to change or stop the order will have to attend court again. Sometimes situations change and it is necessary for people to change their orders. For examply, a couple may reconcile and want to live together again. In this case, they do not need to cancel the order, they can just apply to have it varied so that any extra conditions are removed, leaving only the two standard conditions (which still allow a couple to live together but still prohibit domestic violence). On other occasions, people may need to add conditions to their order (e.g. no contact between the respondent and the aggrieved) to further protect themselves.


How do you obtain a Protection Order?
There are three different ways people can apply for an order:
1) The abused person can be the applicant and either get a solicitor or a police prosecutor to represent them;
2) The police can be the applicant. The police have the power to apply for an order without the abused person’s permission if they see this as necessary;
3) The abused person can authorise another person to apply for the order and act on their behalf. This is only suggested in situations where the authorised person knows a lot about the violence and abuse experienced by the victim;
4) A guardian for a personal matter of the aggrieved, or an administrator for a financial matter of the aggrieved, under the Guardianship and Administration Act 2000 can apply
5) The Adult Guardian if they believe that the aggrieved does not have the capacity to make an application can apply
6) A person appointed as the aggrieved’s attorney under the Powers of Attorney Act 1998 can apply as long as the person makes the application under the enduring power of attorney.

What happens at court when you apply for a Protection Order?

Step 1. The police, the aggrieved (the abused person), or an authorised person apply for a protection order using the protection order application form, either at court, at a police station or at a domestic violence service. It is possible to apply for an urgent protection order if you believe you are in immediate risk. Once the form is filled in, it is given to the Magistrates Court. If you want your application to be heard urgently, it is important to let the court staff know this.

Step 2. Urgent applications will usually be heard at court on the afternoon of the day that they are lodged at court. If your application is an urgent application the respondent does not need to be given a copy of the application for the matter to proceed. If your application is not an urgent application a court date is set and the police will serve (give) a copy of the application to the respondent (the person you want protection against).

Step 3. When your name is called out at court on the court date, you go into the court room. If you are the aggrieved, you sit to the right of the police prosecutor or your lawyer. If you are the respondent, you sit on the left hand side of the police prosecutor/lawyer, at the other end of the table. The magistrate quickly reads the application. What happens next depends on whether the respondent turns up at court and whether he/she has been served.

Step 4. If the respondent has been served, and he/she turns up at court, he/she will be asked if they want to consent to an order being made or to contest the order. If the respondent consents to the order, the order is made that day and generally lasts for two years. If the respondent contests the order, another court date is set for a hearing. If this happens, it is a good idea for the aggrieved to apply for Legal Aid for a solicitor, or to pay for a private solicitor (unless the application was made by the police). This is because a hearing is a more lengthy consideration of the application, and a lawyer can help to ensure that your arguments are heard properly. If you cannot get Legal Aid or afford a solicitor, contact Police Prosecutions as soon as possible. Ask to speak to the Police Prosecutor who will be at court on the date of your hearing, to help prepare your case. For futher information regarding preparing for a hearing, contact Women’s Legal Service on 3392 0670 or Legal Aid on 1300 65 11 88.

Step 5. If the respondent has been served and does not turn up at court, the Magistrate has the power to make a protection order any way. This is because the respondent knew they were supposed to be there and didn’t turn up. Sometimes, however, the Magistrate may decide to give the respondent one more chance to turn up by adjourning the matter to a later date.

Step 6. If the respondent has not yet been served with a copy of the protection order application, the court date will be adjourned to a later date to allow more time for the police to give the respondent a copy of the application. This is because the respondent has to be given the opportunity to know that a protection order application has been made and to appear in court. The Magistrate may grant a temporary order until the matter returns to court if it is believed that your person or property is at risk. If you believe this is necessary, it is important that you tell the Police Prosecutor.

Step 7. Once an order is made, whether is is a temporary protection order or a final protection order, the police will arrange for a copy of the order to be served on the respondent. The respondent cannot be found guilty of breaching (breaking) an order unless the police have given him/her a copy of the order (or the court has) so that they know that it exists and have had the conditions explained to them. This process normally takes from 3-7 days. However, if the respondent is violent or abusive to you in the meantime, you should still contact the police immediately because this behaviour is still not acceptable. Once the order is in place, it is extremely important to contact the police whenever the respondent has breached the conditions on the order. This is a way to make the order work for you.

Step 8. If you are the aggrieved, you have the right to take a support person in to the court with you. Please feel free to ask the women’s court assistance worker to go into court with you if you would like their support. The court assistance worker can then help to explain things you might not have understood when you come out of court. The support person sits in the first row of chairs behind you. If you have further questions when you come out of court, please go back to the court assistance area and seek out a court assistance worker.


What happens if the other party breaks (breaches) the Order?
If the respondent does anything that the protection order states that he/she cannot do, they are breaching the order. If the respondent breaches the order, you should immediately contact the police. The police will then investigate, which usually involves them obtaining a statement from you and questioning the respondent. If the police have enough evidence to prove the breach, the respondent will be charged with a criminal offence. To be found guilty of a criminal offence, it must be proved ‘beyond reasonable doubt’ that an offence occurred. Therefore, any evidence you can obtain will be very useful.

It is important to keep a diary of any ongoing domestic violence. Keep any abusive telephone messages on your message bank/answering machine. Have the names and/or phone numbers of any witnesses.

Punishments for offenders who are found guilty of breaching a Protection Order can include community service, good behaviour bonds, fines of up to $3000 or imprisonment for up to 24 months. The offender will only be sent to prison for a serious breach or numerous, repeated breaches.


How to make a Protection Order work for you
Keep a copy of your order with you
Keep a copy of your protection order with you at all times. Also keep copies at places you frequent.
Ring the police
Ring the police whenever the order is breached, no matter how small the breach might seem to you. Write down exactly what happened as soon as possible after the incident, to help you remember accurately what happened.
Let people know. If you feel comfortable doing so, let friends and/or neighbours know of the conditions on your protection order, and ask them to be on the alert for any potential breaches of the order. They may then prove to be useful witnesses if the order is breached.
Make sure that you also obey the order. For example, if there is a no contact condition and you invite the respondent to your home and then an incident of domestic violence occurs, the breach may not be treated as seriously.
Apply for a variation if needed. If the conditions on the order are no longer suitable, apply for a variation of the order through the court. For example, if you have decided you would like to live together, but your order says no contact or that the respondent cannot come near your home, apply for a variation to have these conditions removed.


If you are a woman who is considering applying for a protection order, please contact us on 3816 3000. We can assist you to write your application and can also support you at court.

If you are a man requiring more information, please contact Legal Aid on 1300 65 11 88.


Important phone numbers:

Women’s Legal Service
3392 0670

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The police may decide to pursue criminal charges as well as taking out a protection order. Women can also tell the police that they would like to press charges. The criminal charges that apply to domestic and family violence situations can include charges such as assault, grievous bodily harm, rape and sexual assault, and stalking. However, whether a charge is laid is up to the police and is usually based on whether they consider there to be enough evidence. When charges are laid, the aggrieved is usually called as a witness to give evidence about the incident.

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Legal Information Regarding Family Law Issues

If you decide to separate from an abusive partner, there are several family law issues that need to be considered. Some of these issues include: Residence and contact (where the child/ren will live and how visits with the other parents will occur), property settlement (how all items of value will be split between you and your ex-partner), child support (money paid to by the parent a child is not living with to help cover the costs of raising a child incurred by the parent that the child is living with) and divorce.


Residence and Contact
If you separate from your partner, decisions need to be made regarding where any children of the relationship will live and how visits with the other parent will occur. There are various options for making this decision:

1) You may reach a private informal agreement with your ex-partner about where the children will live and how visits with the other parent will occur. This is only advisable where you can completely trust your ex-partner (which is not usually the case in situations of domestic violence)
2) You may reach no agreement but not worry about going to court (in which case, if the children are living with you, there is nothing stopping him from taking them as under the law, unless there is a court order in place, both parents have equal rights to a child).
3) You may be having trouble reaching agreement, but feel that with a neutral third party you may be able to reach a compromise. In this case, mediation might be useful for you. This is where a neutral third party trained in communication skills attempts to help the two of you to make an agreement. However, in situations of domestic violence, it is important to be aware of the limitations of mediation. Mediation is designed for situations where both parties feel that they are negotiating on an equal level. Where domestic violence is an issue, one party holds more power than the other party. There is a risk that the survivor of domestic violence may feel threatened and end up agreeing to something out of fear. This can result in an unsuitable agreement being reached that risks either the safety of the survivor and/or the safety of her children. If you feel that mediation would not be suitable for you due to the above reason, it is important that you highlight this when you are applying for legal aid or engaging a solicitor.
4) If mediation has not worked or is not suitable, the final option is to go to the Family Court and have a judge make the decision on residence and contact. In this situation, the judge will consider what the best interests of the child/ren are. Some of the factors considered include: How well each parent would look after the child, what the child wants (depending on the age and maturity of the child), how well the child relates to either parent, the need to protect the hcild from physical or psychological harm and many more. The court must consider whether there has been any domestic violence involving the child or members of the child’s family.


Consent Orders and Parenting Plans
If you and your ex-partner have been able to reach agreement (either through mediation or privately), one option to protect your agreement is a consent order. A consent order makes your agreement legally binding; whereas if you just sign a written statement outlining your agreement, it is not legally binding. Consent order forms are available from the Family Law Court. Another option is a parenting plan. A parenting plan is similar to a consent order except it can also include statements about things that a court cannot enforce e.g. statements of ideals for how the children should be raised. Before agreeing to a consent order or parenting plan, it is important to obtain independent legal advice.

For further information or legal advice on issues of residence and contact, please contact the Women’s Legal Service on 3392 0670 or Legal Aid on 1300 65 11 88.


Property Settlement
When separating from your partner, it is important to seek legal advice regarding how to divide all your property. There are different laws depending on whether you were married or de facto. If you reach agreement with your ex-partner about how to divide the property, if you were married, you can register your agreement as a consent order with the Family Court to make it legally binding. If you were de facto and separated on or after 21st December 1999, you can make a written agreement. It is important to get legal advice before doing this as the agreement has to be written in a certain way to be legally binding. If you separated before this date and were de facto, you should seek legal advice regarding whether a legally binding agreement is possible.

If you cannot reach agreement and you were married, you can either try mediation (see previous section on the limitations of mediation where there is domestic violence) or you can apply to the Family Court for a property settlement. In making a decision, the judge will consider the contributions each party has made to the relationship (both financial e.g. income, savings, inheritances, and non-financial contributions e.g. as a homemaker or parent) and your needs for the future. To determine your future needs, the court looks at issues such as yoru responsibilities for looking after the children, your job finding prospects, any restrictions to your income if your have health problems and your earning potential. If the court determines that your needs are greater than your ex-husband’s, you may receive a greater proportion of the property.

If you cannot reach agreement and you were de facto, what you do depends on when you separated. If you separated before 21st December 1999, a lot of weight is placed on financial contributions and there are no clear guidelines. It is important to seek legal advice before pursuing any action. If you separated on or after 21st December 1999 (regardless of whether you were in a heterosexual or homosexual relationship), you are covered by the Property Law Act . You may be able to go to court but only in the following circumstances: if you and your ex-partner lived together for at least 2 years or there is a child under 18 or you have made significant financial/non-financial contributions and not having an order would be a serious injustice to you. It is important to seek legal advice to determine whether you are able to go to court or not.

Legal Aid only provides arbitration funding (similar to mediation) in relation to property settlement. Funding will only be provided where the couple was married, previous attempts to reach agreement have failed, both parties agree to abide by the arbitration decision and the property in dispute is between $5000 to $100 000 in total.
For further information or legal advice on issues of property settlement, please contact the Women’s Legal Service on 3392 0670 or Legal Aid on 1300 65 11 88.


Child Support
If you separated on or after 1st October 1989, and are the parent with whom the children are living, you are eligible for child support. You can contact the Child Support Agency who can give you an idea of how much money should be paid. Then, you can either make a private agreement with your ex-partner and register it with the child support agency, or arrange for the child support agency to work out how much is to be paid and to collect the money.
If you separated before 1st October 1989 and are the parent with whom the children are living, you can apply to the Magistrates, Family or Federal Magistrates Court for a maintenance order. It is important to seek legal advice before doing this.

For further information or legal advice on issues of residence and contact, please contact the Women’s Legal Service on 3392 0670 or Legal Aid on 1300 65 11 88.


Divorce
To apply for a divorce, you must show that you have been separated for 12 months, that you or your husband is an Australian citizen/resident and see Australia as your permanent home and that the marriage has irretrievably broken down and there is no chance of you resuming your relationship. There are “do it yourself” divorce kits that are available from the Family Court. If you do not wish to prepare your own application, you should employ a solicitor to do it (Legal Aid will not fund divorce applications unless there are special circumstances). There is a $526 filing fee however there is an “Application for non-payment of fees” form you can fill in if paying the fee would cause you financial hardship. It is important to remember that once your divorce comes through, you only have 12 months to apply to the court for spousal maintenance or a property settlement.

For further information or legal advice on issues of divorce, please contact the Women’s Legal Service on 3392 0670 or Legal Aid on 1300 65 11 88.

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