LexisNexis Practical Guidance®

In circumstances of violence, harassment, intimidation or the threat of same, it may be necessary to have a family violence protection order made. These orders seek to protect a person from the risk of harm or violence by limiting the behaviour of the person who poses the threat. Unlike family law which is predominantly federal jurisdiction, family violence protection orders are derived from State-based jurisdiction. These orders have different names in different states, namely:

• • New South Wales — apprehended domestic and personal violence orders (ADVO and APVO);
• • Victoria — family violence intervention orders (FVIO);
• • Queensland — protection orders;
• • Western Australia — family violence restraining orders (FVRO);
• • South Australia — intervention orders (IVO);
• • Northern Territory — domestic violence orders (DVO); and
• • Tasmania — family violence orders (FVO).

In all jurisdictions the order can extend to cover other significant persons including children and relatives of the protected person. A protection order of one Australian State or Territory will be recognised in any other Australian State or Territory and in some cases may automatically apply across Australia. For example, an existing family violence protection order will automatically be recognised and enforceable across Australia if it was made on or after 25 November 2017 or was made or varied in a Victorian court on any date or made in New Zealand and registered in Victoria (on any date). If an existing order is not automatically enforceable a party can apply to have it mutually recognised pursuant to the National Domestic Violence Order Scheme.

If the family violence protection order was made prior to 25 November 2017, an application would need to be made to a Magistrate’s Court to have the order nationally recognised.

All jurisdictions have an expansive definition of what constitutes family and domestic violence. Generally, the definition of family violence for a State-based family violence protection order is consistent with the definition of family violence in the Family Law Act 1975 (Cth) (FLA) and includes physical and sexual abuse, emotional and psychological abuse, economic abuse or control, sexually coercive behaviour, property damage, harming animals, deprivation of liberty, and causing a child to witness or otherwise be exposed to such behaviours.

Because a protection order is made in response to a risk of harm, they will often need to be made in urgent circumstances. The states and territories have different rules in relation to urgent family violence protection orders. In New South Wales, Victoria, South Australia, the Northern Territory, Western Australia and Tasmania the police have power to issue some urgent protection orders. In Western Australia these are called police orders and are different to a family violence restraining orders (eg, they are normally issued on the spot and while they have immediate effect they only last for up to 72 hours unless served on the respondent within 24 hours.

In Queensland and the Australian Capital Territory, an order can only be made by a magistrate or judicial officer. In New South Wales, Queensland, the Northern Territory, the Australian Capital Territory and Tasmania, such orders have immediate effect while in Victoria and South Australia, the order only comes into effect when it has been served on the respondent. In Western Australia a family violence protection order (restraining order) only comes into effect when it has been served on the respondent. It is very rare in Western Australia at the time of writing for police officers to apply for family violence restraining orders on behalf of applicants whereas in other jurisdictions, eg, Victoria, it is common place and considered best practice for police to be the applicant.

Generally speaking a family violence protection order is applied for at a Magistrate’s Court. However, in Western Australia as the Family Court of WA is a State court, applications for a family violence protection order (FV restraining order) can technically be made in the Family Court of WA or in a Magistrate’s Court. See Practice Direction No. 1 of 2017 on Family Court of WA website in relation to the forms to be used.

Once the family violence protection order is served, the respondent has an opportunity at or before the first return date to object to the making of the family violence restraining order. The Court can also consider whether an urgent order or police order should be continued or whether or not the interim family violence protection order should be varied.

Often the parties will enter into negotiations and the matter may settle by consent, either on an interim or a final basis. In New South Wales, Victoria, Western Australia, and South Australia, family violence protection orders can be consented to on a “without admissions” basis. This means that the respondent consents to the order without admitting that they have done anything wrong. (In Queensland, while family violence protection orders can be made by consent, it is debatable whether or not an order can be made on a “without admissions” basis. Nonetheless, whether or not the power to make such an order is available, the reality is that such orders are regularly made). The respondent will agree to abide by the terms of the order, generally to keep the peace. The majority of protection orders are made on a consent basis.

If the matter does not settle on a final basis, the proceedings will generally be adjourned allowing time for both sides to prepare their case. Directions will usually be made about the filing of evidence.

The issuing of a family violence protection order in itself will not result in a criminal conviction for the respondent (the person who is considered a threat under the order). However, if that person breaches the order, and are subsequently charged with and convicted of that breach, that person will then have a criminal conviction.

The police play a pivotal role in the administration of family violence protection orders. They can investigate claims of family violence, apply for family violence protection orders directly (although how common this is varies from state to state), serve orders on the respondent, and arrest and also charge respondents upon the breach of a family violence protection order. In Victoria more than 70% of applications for family violence protection orders are made by police. Where a police officer is the applicant for the protection order, they will present the application to the court and the person in need of protection will not need separate representation. However, in some cases the police will decline to apply for a protection order. In those cases, the person seeking the order will be the applicant. Although legal representation is not strictly required it is strongly advisable.

The existence of a family violence protection order will be relevant for the Family Law court/s when deciding parenting cases. The court should be provided with a copy of any existing protection orders. Section 65AA FLA provides that the child’s best interests are of paramount consideration when making parenting orders. Pursuant to s 60CC(3)(k) FLA, the existence of a family violence order is a relevant consideration for the court when determining the best interests of a child. If a family violence order applies, the court can consider any relevant inferences which can be drawn from the order, taking into account such factors as:

• • the nature of the order;
• • the circumstances in which the order was made;
• • any evidence admitted in proceedings for the order;
• • any finding by the court in those proceedings; and
• • any other relevant matter.

There are mirror provisions to these in the Family Court Act 1997 (WA) which applies to parenting matters for parties other than married parties in Western Australia.

Sometimes the courts will be asked to make a parenting order that is inconsistent with a family violence protection order. Generally, such a parenting order will be limited to allow contact between the parties only to the extent that it is necessary to do such things as participate in family counselling or dispute resolution, or to facilitate a parent spending time with a child. Section 68P of the FLA imposes a number of duties upon the court if it decides that it is in the best interests of the child to make a family law order which is inconsistent with a protection order. Section 68Q provides that to the extent that there is an inconsistency between a family law order and a protection order, the protection order is invalid to the extent of the inconsistency. Care should be taken by the practitioner to ensure that the inconsistent parenting order does not inadvertently compromise the safety of the protected party/ies.

Sometimes the courts will be asked to make a parenting order that is inconsistent with a protection order. Generally, such a parenting order will be limited to allow contact between the parties only to the extent that it is necessary to do such things as participate in family counselling or dispute resolution, or to facilitate a parent spending time with a child. Section 68P FLA imposes a number of duties upon the court if it decides that it is in the best interests of the child to make a family law order which is inconsistent with a protection order. Section 68Q provides that to the extent that there is an inconsistency between a family law order and a protection order, the protection order is invalid. Care should be taken by the practitioner to ensure that the inconsistent parenting order does not inadvertently compromise the safety of the protected party/ies.

The Family Relationships Advice Line on 1800 050 321 is a national advice and referral service helping families with separation or relationship issues and complements the Family Relationship Centres. They can provide information and advice (although not legal advice) about family violence and have resources for both victims and perpetrators of violence.