South Australia - Protection Orders
What is a protection order?
Protection orders (called restraining orders in South Australia) are orders made under State or Territory laws that provide a quick and flexible method of obtaining legal protection from many forms of violence, for example:
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Physical abuse, e.g. using physical force |
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Sexual abuse, e.g. forced sexual activity |
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Psychological abuse, e.g. humiliation, intimidation |
Who can apply?
You can apply for a restraining order against a family member (spouse, de facto spouse or former spouse) if you can show that this person has caused:
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Personal injury |
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Damage to your property |
Or
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On two or more occasions they have acted in a way that made you fearful e.g. following you, interfering with property etc. |
How to apply
An application can be made to a Magistrates' Court by:
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You |
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A solicitor, friend, support worker who is authorised by you |
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A police officer – in South Australia the police apply for the majority of domestic violence restraining orders. |
Once an application is lodged, a hearing will be held quickly. If the order is granted, it is not effective until it is served on the person you have taken the order against. Another hearing is then held to allow this person to oppose the order.
Types of order
Various orders can be made. For example, an order can:
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Prohibit contact with you at home or work. |
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Limit contact (for example, when the other person is drunk). |
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Prohibit acting in an offensive manner. |
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Prohibit damage to property. |
The order can be written to suit your situation.
Breaching an order
The order is a civil order but breach of an order may be a criminal offence. Contact the police if there is breach of this order.
Restraining orders and child contact
Where there is a restraining order in place, or one is needed, difficulties can arise for people who also have residence/contact orders through the family law system. If a court makes a residence/contact order that conflicts with a restraining order, the residence/contact order takes priority. The restraining order will still stand, but any part that is inconsistent will be over-ruled by the residence/contact order.
For example, if you have a contact order that gives the father contact on weekends but the restraining order only allows contact between the father and child on Saturday, you have a conflict about contact on Sunday. The contact order will over-rule the restraining order and contact will happen for the entire weekend.
This situation can weaken the restraining order and also make it more difficult for the Police to enforce.
Restraining orders can be modified by the court to take into account the practical arrangements for contact. Alternatively, contact orders can be made to take into account restraining orders, for example, by arranging for an independent person to be present during contact hand-over times.
A magistrate cannot usually make orders about children in relation to residence, contact and specific issues if there is any dispute between the parents. However, if a Woman applies for a protection order or a variation of her protection order, then the magistrate may at the same time make or vary the terms of her existing Family Court contact order to make it safer for her and the children when contact takes place. The magistrate can also discharge or suspend an existing Family Court order, if among other things, the magistrate is satisfied it would be too unsafe for the Woman or her children if contact continued.
If you have Family Court contact orders in place before you have a domestic violence protection order, try to seek legal advice about whether these laws apply to you before you apply for your protection order.
for more information see link to restraining orders booklet in Useful Box
You May also want to check The Australian government attorney general's department website http://www.familylaw.gov.au/accesspoint/ (search 'protection orders') As some States are currently reviewing protection orders. (Specifically WA and Tas as of June 2004).
