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

Domestic Violence Orders

South Australia

Intervention Orders

Western Australia
Violence Restraining Orders

Tasmania
Family Violence 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

Registering an interstate order

It’s not a criminal case

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.

Intervention Orders and family law orders

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.

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 Circuit 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:

bulletdelivering or collecting a child who is spending time with a parent or other person (as provided by the Family Law Act), or
bulletenabling 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.

Take control of your case

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.

Personal details:

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.

Why you want the order:

• 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.

You will need to make the court aware of:

·        any weapons that the respondent has access to;

·        details of people you want covered by the order such as family and friends;

·        and how you want to be protected that is, what extra conditions you need to have included on the order to ensure your safety.

Your story

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.

Help at court

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 

Interpreters

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. 

Defendant’s reaction

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.

You must attend court

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.

Help from the police

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 as applying for a protection order.

Registering an interstate order

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.

Queensland Protection Orders

NSW Apprehended Violence Orders

Victoria Intervention Orders

ACT Protection Orders

NT Domestic Violence Orders

SA Intervention Orders

WA Violence Restraining Orders

Tasmania Family Violence Orders

(Some of the information for this section has kindly been provided by Brisbane Women’s Legal Service “Queensland Women and Family Law”)

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