Protection Orders
The Following
Links are bookmarked further down the page
Queensland
Protection Orders
New South Wales
Apprehended Violence Orders
Victoria
Intervention
Orders
Australian Capital Territory
Protection orders
Northern Territory ,
South Australia and Western
Australia
Restraining Orders
Tasmania
Restraint
orders
Introduction; It’s not a
criminal case
Intervention Orders and family law
orders
Take control of your case
Personal
details
Why you want the order
Your story
Help at
court
Interpreters
Defendant’s reaction
You must attend court
Help from the
police
Applying for a Protection, intervention,
restraining or apprehended violence Order is a civil procedure, not a criminal
one. Even if the police are involved, your application for a Protection Order
doesn’t mean that the other person is being charged with a criminal offence
(although, depending upon what the other person has done to you, the police can
lay criminal charges as well). They don’t get a criminal record just because
the magistrate decides to make an Intervention Order.
If they break the terms of the order, however,
that is a criminal offence.
Family violence orders
A family violence order (including an interim order) is
generally made under a prescribed law of a state or territory to protect a
person from family violence.
Family violence orders are called different things in
different states such as:
Under the Family Law Act, all state and territory orders
are described as family violence orders. Such orders may forbid one parent
from coming within a set distance of another parent or stalking or harassing
them.
Sometimes the Family Court or Federal Magistrates Court
makes an order or an injunction that is inconsistent with the state or
territory order (see Sections
68P and
68Q of the Family Law Act). Under the Family Law Act, family violence
orders can allow parties to come into contact with each other only for:
 | delivering or collecting a child who is spending time
with a parent or other person (as provided by the Family Law Act), or
|
| enabling parties to attend family counselling, family
dispute resolution, a family consultant meeting or other court events
during family law proceedings. |
Child protection orders are different to family violence
orders. They are made by a state Children's Court when it is believed that a
child is in need of protection. However, children can sometimes be included
on family violence orders made for a parent.
For information on state legislation and a comprehensive
guide to protection orders select Protection
Orders.
Intervention Orders are designed to deal with
family violence. They are quite separate from family law orders about divorce,
property or the parenting of children. The relationship between Intervention
Orders and family law orders is quite complex.
For more
information see the family violence section of
this website.
Your Intervention Order doesn’t stop the
defendant from applying under the Family Law Act for a contact order allowing
them to see the children.
If a Woman has a Family Court
contact order or has an application currently before the Family Court, she
should tell the magistrate at a hearing for a domestic violence protection order
about this for the following reasons:
A domestic violence order must be consistent with a Family
Court contact order. If it is not then the Family Court order will be the
dominant order and must be abided by.
A magistrate cannot usually make orders about children 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.
Whether or not the police are applying for a
protection order on your behalf, you have to live with the outcome and you need
to be in control of your own case.
This means:
• Get medical treatment if you need it.
• Use a domestic violence support service.
• Get legal advice before you apply for the
order if you can, or at least before the hearing day.
• Think about what sort of order you need and
how it will work in practice.
• Make sure you have all the information you
need to give to the court.
• Keep a diary of continuing violent behaviour
or harassment, noting the time, date and place.
When you go to the court to make your
application for an Intervention Order, take with you all the relevant
information. Take any previous court orders and any family law orders. Some of
what the registrar needs to know may be
extremely personal – be prepared for this. The
registrar will need to know the following sorts of information.
your name,
address, telephone number and date of birth. If you don’t want the defendant
knowing where you live or work, these addresses can be left out. In practice,
this means that the other person cannot live with you. If they are living with
you now, it means that they will have to move out.
If a Woman does not want to
be found by her ex-partner it is important that she does not write her current
address on the application.
A post office box address for correspondence can be used.
Alternatively she can attach a note to the application
with her address on it. The court then has her details but they are not given to
the respondent spouse. The Woman should speak to the clerk of the court
regarding this option.
• name, address, telephone number, occupation
and age (date of birth if you know it) of the defendant.
Relationship:
• your relationship to the defendant (whether
married to them, boyfriend/girlfriend etc.),
• information about the relationship such as
how long it has been going, whether you’re separated or not.
Children:
• names and birthdates of your children and
whether they’re the defendant’s children,
• whether the children are at risk of violence
or abuse and need to be included in the Intervention Order,
• whether you want family law contact orders
varied or suspended.
Other evidence
This isn’t essential, but if you do have other
sorts of evidence, tell the registrar and the magistrate:
• Witnesses: Occasionally other people will have
seen or heard what the defendant did. They must have seen or heard something
themselves, not just rely on what you or someone else told them.
• Photos: You may have photos of injuries caused
by the defendant.
• Letters or other papers: Take any written
material showing threats or intimidation, including e-mail messages or answering
machine tapes.
• Medical evidence: A doctor’s report describing
physical injuries is good evidence. If the defendant is opposing the order, you
may also need to bring the doctor to give evidence in person. Ask the court
registrar about this.
• Police statements: If the police were called
and took a statement from you, they should have given you a copy of this. The
police themselves won’t
usually come to court unless they are applying
for the order on your behalf. If you think it’s important to have them there to
give evidence, you would have to summons them to court. Ask the court registrar
or get legal advice about how to do this.
Other court orders:
• whether you have had any other Intervention
Orders against the person,
• whether there are any family law parenting
orders –either already made or in progress.
Helpful information about the defendant
To help the police find the defendant, you
should also give the registrar information about the defendant, such as:
• work address,
• car registration number, colour and make of
car,
• address of close friends or family where
they visit,
• other places they often go to, such as the
pub, gym,
• physical description of defendant, plus
recent photo,
• whether the defendant has a gun and where
it’s kept.
• Give details of what has happened, including
dates, times, places. Start with the most recent events.
• Include all incidents of physical violence,
and also other forms of abuse or intimidation. Describe any threats to use
weapons or actual use of them.
• Be as specific as possible, e.g. Last
Wednesday night he punched me in the stomach during an argument; or she said she
would kill me if I went out to visit my friend. Tell it word for word if you
can.
• Talk about why you’re afraid it will happen
again.
Tell the registrar as much as you can. Don’t
rely on them to ask you questions. If the magistrate doesn’t understand or have
enough information in your application, you will have to answer more questions
publicly in court.
She will need to make the
court aware of:
· any weapons that the respondent has access to;
· details of people she wants covered by her order
such as family and friends;
· and how she wants to be protected that is, what
extra conditions she needs to have included on the order to ensure her safety.
Your account of what has happened is the most
important part of your evidence. Even if you have no other evidence, you can
still get an order based on what you tell the magistrate.
At the first hearing before the magistrate, you
will be asked to go into the witness box, swear an oath (or an affirmation) to
tell the truth, and tell the magistrate in detail, step by step, what happened
and why you’re afraid
it could happen again.
Start with the most recent and most serious
abuse.
It’s a good idea to write down what you want to
say before you go to court, so that it’s all clear in your mind.
It’s a good idea
to take someone with you when you go to see the registrar, to help you tell your
story clearly and to help you remember what the registrar says. This can be a
friend, a domestic violence support worker or a support worker from another
agency
see resources page
If you or the defendant are going to need an
interpreter for the court hearing, tell the registrar this when you apply for
the order. You may also need help from an interpreter when the registrar
interviews you.
You may be at risk from the defendant during the
time after your application has been made and before the final hearing date.
They may be angry that you have applied for an order.
Ring the police immediately on 000 if the
defendant harasses, assaults or threatens you or your property. If you have an
interim order or if the defendant is on bail and breaks the bail conditions by
approaching you, the police can arrest and charge them.
The magistrate won’t make an order if you’re not
there and may drop your application altogether (unless the police are applying
for the order for you).
If you have a good reason for not coming, such
as a medical emergency, ring the court beforehand and tell the registrar.
If the defendant is trying to intimidate you out
of going to court, tell the police or the court registrar immediately. You can
also ring one of the support services.
Stay in touch with the court
If you haven’t heard from the court a few days
before the hearing, ring the registrar to check if the defendant has been
notified (by Summons or by arrest Warrant).
Usually, a final order cannot be made until the
defendant has been served with the court documents. If the defendant has not
been served with the documents, the court date may be changed and you may need
to get an interim order extended.
Help at court
Many courts have people who can help by
explaining what will happen or going into court with you. Ask the court staff
what help will be available. (Link to resources page)
If you’re afraid at court
If you’re worried about your safety, tell the
court staff. They can arrange for you to wait somewhere away from the defendant
or refer you to a support agency at court.
Dealing with defendant or their lawyer
If the defendant has a lawyer they may want to
talk to you. You don’t have to talk to them if you don’t want to. Don’t let
yourself be pressured into dropping the case or agreeing to different conditions
in the order. Tell the registrar if this is a problem.
Defendant must get a copy of the order
The order has no legal force until the defendant
knows what the order says. If they are not at court the registrar will send a
copy of the order to the police to deliver to the defendant. This can take a few
days. Check with the
police or court to find out if the order has
been served.
Keep a copy of the order with you
Carry your Intervention Order with you. Give a
copy to the places where you and your children regularly go, such as school,
kindergarten, childcare, work. Then they can call the police if necessary.
You may need to get help
from your local police to deal with practical issues. You can arrange to have
the police present while the defendant moves out or collects their belongings.
It is not up to the police to evict the defendant.
If the Intervention Order says that the
defendant must not come within a certain distance of your house, then they must
move out – usually by a specific date. If they don’t the police can arrest them
for breaching the order.
You can also get the police to go with you to
get personal belongings from the house where the defendant is living.Again, the
role of the police is to make sure that the terms of the order aren’t breached.
They’re not there to help you move your things, but only to ensure that no
intimidation or assault occurs.
If a Woman has been assaulted, sexually
assaulted or stalked the police can lay criminal charges as well s applying for
a protection order. (Link to criminal section)
A protection order made in one state can be registered in
any state or territory, if a Woman is moving interstate or visiting for a long
time. The respondent spouse does not have to be notified of registration of an
interstate order unless the aggrieved spouse has agreed to this in writing. This
is beneficial for women who have moved from interstate and are in hiding because
of the domestic violence.
Each State and Territory in Australia has different laws
and names for protection orders. Links to the different states and the
corresponding orders and processes for attaining them are listed below.
(Some of the information for this section has kindly been
provided by Brisbane Women’s Legal Service “Queensland Women and Family Law”)