The Application

Lodge the Application

You must lodge your completed application form at the counter of your magistrates court.  There is no charge for lodging your form.

 

What happens next?

A copy of the woman’s application will be served on the respondent by the police.

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.

If a woman herself is the applicant she can get a solicitor or a police prosecutor to represent her in court.

Police Prosecutors are located at Magistrates Courts and can present the aggrieved spouse’s application to the court.  If a woman wishes to have the police prosecutor represent her she will need to tick this on the protection order application.  Generally the woman will only be able to speak to the police prosecutor about her situation and any other information not included on her application just prior to going into court.

Some women may prefer to have a solicitor represent them, particularly if the matter goes to a hearing and if the respondent has a solicitor. Some women may be eligible for legal aid for a solicitor to represent them in court.

 

The police as applicant

The police can apply for a protection order.  Usually this happens when they have attended an incident and believe that domestic violence has occurred.  Some women have reported a sense of relief when the police applications are made.  This removes the onus on them to take their partners to court when there is fear or retaliation and often a sense of betrayal.

Even when there is a police application for a protection order, many women still face ongoing harassment and pressure from their partners to drop the order.  In most instances where it is a police application the woman has no power to stop the order from proceeding.  The police are unlikely to withdraw an application fro an order if they believe a woman is in some danger.

If the police make an application for a protection order, they will go to court and present the case.

 

An authorised person as applicant

A woman can authorise any person, for example a welfare worker, family member or friend to make the application for a protection order.  An authorised person must have written authority of the aggrieved spouse to represent her at the court hearing.  If the woman wishes to have an authorised person take out the order on her behalf she should tick on the application form that she does not need the police prosecutor to represent her.  This option is not often chosen, as it requires some knowledge and experience with protection order proceedings.  If it is necessary for workers to take on this role, it is important to try and get as much information as possible about the court process.  Make contact with a domestic violence court assistance worker or a community legal centre to get advice on how best to proceed.

 

Cross applications

Cross applications are where both parties make applications for orders against each other.  These can be quite destructive as there is usually only one party who is living in fear of the other, and with two orders the police find it very difficult to take appropriate action.  Women often find that in response to their applications, respondent spouses will make their own application for a protection order, and in this way use the law to retain their power over them.  Magistrates may throw out these applications where they are seen to be vexatious.

It is important for women to get legal advice when they are faced with a cross application.  Police prosecutors will usually represent the person who made the initial application for a protection order.

 

Going to court

Once an application has been lodged, a time will be set down for what is called the “mention date”.  The police will arrange for the respondent to be served with a summons (including a copy of the application) to appear in court on that date.  If a solicitor or police prosecutor is representing the woman it is normal practice for her representative at court to see if they can agree on suitable conditions for a protection order.  Some women may be pressured into agreeing to withdraw the protection order application in return for the respondent signing an undertaking that they will basically be of good behaviour towards the aggrieved.  Women should be aware that such undertakings do not have any legal weight and there are no penalties if the agreement is broken.  Seeking some time to get a second opinion or to think over this proposal may have more positive outcomes for women in this situation.

The possible outcomes of a mention date are:

  1. An adjournment to seek legal advice;
  2. Consent to an order;
  3. Or contesting an order.

 

An adjournment to seek legal advice

If this is the first time the matter has gone to court, this will be granted and a new date will be set for all parties to return to court.  An adjournment will also be granted if the respondent has not yet been served with a summons.

 

Consent to an order

This is called a “consent order” and the Woman will not need to give evidence at a hearing. Usually the conditions are negotiated before entering the courtroom. If both parties agree to the conditions, then the Magistrate can made the order in the terms put forward. Women do not have to consent to an order which does not provide enough protection.

 

Contesting of the order

This means the respondent wishes to argue against the order and the Woman will need to return for a hearing.  At the hearing stage it is best to have an experienced police prosecutor or solicitor acting for the Woman.  If the application is adjourned or a hearing date is set for the future, a woman can ask the Magistrate to make a temporary order to cover her in the meantime.

 

Problems with serving

If a Woman goes to court for the mention date and the respondent spouse has not been served with a summons by the police, the matter will be adjourned and the Magistrate may grant or extend a temporary protection order. When there have been several unsuccessful attempts by the police to serve the respondent, because they may be evading the police, the Magistrate may suggest to the Woman that her application may not succeed and that she may need to look at other safety strategies.  However, when the respondent has been served and does not attend the court the Magistrate may decide to make a full protection order in the respondent’s absence.

 

At the hearing

Protection order hearings are what lawyers call “civil” proceedings (that is, not criminal).  They are intended to restrict the future behaviour of the respondent, not to punish for what has already been done.  Because of this, the standard of proof, which the court will need, is called the civil standard and is based on the “balance of probabilities”.  

The Magistrate must believe that it is more likely than not that the person is telling the truth.Both parties will be asked to give sworn evidence, as will any person called as a witness. It is helpful for the woman to have documents for example, doctor’s certificate or photographs, or witnesses to support her case.  The proceedings take place in a closed court, so that any evidence that is put forward or any outcomes of the hearing are kept confidential.  If the police have made the application for a protection order, the woman will probably be called to give evidence in court at the hearing.   She will receive a summons to appear in court.  

In a worst case scenario, if the woman refuses to attend court after being summonsed, there may be a warrant issued for her to be taken into custody and made to appear in court to give evidence.  It is strongly advised that a Woman seek legal advice from a solicitor or the police prosecutor before court so she can prepare her case and they can discuss what will happen in court.

Generally an order lasts for two years, although a Magistrate may determine that a protection order continue for a period longer than two years, if there are special reasons.

At the hearing, the court must explain to both the respondent spouse and the aggrieved spouse if they are present in court:

  • The purpose, terms and effect of the proposed order including that the order can be enforceable in other states, territories and New Zealand.
  • either party may apply for revocation or variation of an order.

The court must also explain to the respondent spouse if they are present in court, the consequences of breaching a domestic violence protection order.

The court may use the services or help from other people to explain the order. This could include a local interpreter or the telephone interpreter service, an Aboriginal or Torres Strait Islander local government, a community justice group or group of elders or a clerk or an employee at the court.