Domestic and family violence unfortunately does occur and as a consequence, all jurisdictions in Australia have laws that protect a spouse, child, relatives and other household members from being victims of violence. If a person is experiencing any instances of family violence, an application can be made by the victim of domestic violence, the police, or any other authorised person. There are variations between the States in regards to who, and how, a protection order can be made that this article will attempt to touch upon. Additionally, this piece will also endeavour to cover the type of orders that can be made in general.
Who can make an application for a protection order?
All States within Australia authorises the police to apply for a protection order on behalf of the victim. However, there are differences between the States in the degree of police responsibility that exists requiring the police to take action on behalf of a victim, which dependent on the nature of the legislation, the policy of the police in each jurisdiction, and other related guidelines.
In many jurisdictions there will be a positive obligation by the police to apply for a protection order if the situation requires, for example, in Queensland under ss 67-72 of the Domestic and Family Violence Protection Act, there is a requirement that the police must apply for a protection order in instances where a person is taken into custody due to a concern about the potential for injury to the person or damage to property.
If the victim of family violence is a child under the age of 16, then under s 48(3) of New South Wales’ Crimes (Domestic and Personal Violence) Act, only the police can apply for an order.
Victims also have the capacity to initiate an order or alternatively, a person is able to have a lawyer to initiate an action on their behalf. There are also certain authorised persons who can bring an application on behalf of the victim, and will stand in their shoes in such a scenario.
We can turn to s 45 of Victoria’s Family Violence Protection Act, which outlines the authorised parties that can bring an application, and includes the following:
- an affected family member; or
- the affected family member who is an adult, or any other person with the written consent of the affected family member; or
- the affected family member who is a child, then a parent, or any other person who has the written consent of a parent of the child, or who has leave of the court; or
- the affected family member who has leave of the court if the affected family member is of, or above the age of 14; or
- if the affected member has a guardian, then the guardian or any other person who has leave of the court.
What behaviours can a protection order cover?
Although the behaviours that are defined as family or domestic violence vary between the jurisdictions, the actions that are covered are broad and can include conduct that causes physical or psychological abuse, sexual abuse, property damage, stalking, behaviour that is threatening or harassing, deprivation of liberty or threats to carry any of the aforementioned conduct.
Interestingly, the Northern Territory, Tasmania and Victoria also recognise, and have legislation in place, against ‘economic abuse’, and economic abuse can be a foundation of a protection order.
Using s 8 of the Northern Territory’s Domestic and Family Violence Act, economic abuse can either include one, or a combination of the following behaviours:
- coercing a person to relinquish control of assets or income which can include: unreasonably disposing of property without consent; unreasonably preventing the person from taking part in decisions over household expenditure of the disposition of a joint property; withholding money reasonably necessary for the maintenance of the person or a child of the person.
What are the types of orders that can be made?
Legislation in all jurisdictions grants the courts broad powers to make orders that act as a restraint to the future conduct of a person, and standard conditions mandate that a person does not commit domestic violence, or refrain from committing family violence against a protected person.
Further orders can also include the restriction of a person from contacting, or approaching the protected person, and preventing a person from coming within a specified distance in relation to the victim’s home, place of employment, or the school of a child.
Can an order be made requiring a person committing an act of family violence to leave the home?
Laws exist in all States and Territories that grants the courts the power to order the violent person to be excluded from the family home, or any other particular property, irrespective if the person has a legal or equitable right to the property.
Orders which exclude the person from a particular property are known as ‘ouster’ or ‘exclusion’ orders, and the decision to exclude a person requires a number of considerations to be made by the courts.
Turning to Victoria’s Family Violence Protection Act as our example, under s 82(2) of the Act, the court when making an order to exclude a respondent from the residence must consider:
“(a) the desirability of minimising disruption to the protected person and any child living with the protected person and the importance of maintaining social networks and support which may be lost if the protected person and the child were required to leave the residence or unable to return to or move into the residence;
(b) the desirability of continuity and stability in the care of any child living with the protected person;
(c) the desirability of allowing any childcare arrangements, education, training or employment of the protected person or any child living with the protected person to continue without interruption or disturbance.”
It should also be highlighted that provisions exist in many States that allows a tenancy agreement to be transferred to the applicant if an ouster order is made.
What protection orders can be made if the matter is urgent?
If the safety of a person is an issue, then domestic violence legislation allows a protection order to be obtained quickly to ensure the safety of the applicant.
Furthermore, interim orders can also be granted ex parte (without the presence of the other party) preventing the person from behaving violently until a full hearing.
Interim or urgent orders can be made before the service of an application or notice of proceedings has been given to the respondent, and can be issued on some of the following grounds:
- to ensure the safety of the victim;
- preservation of property;
- protection of a child.
Recognition of the need for emergency orders to be executed quickly, has seen some States granting the police the power to issue temporary protection orders: such as Tasmania under s 14(1) of the Family Violence Act that allows an officer of the rank of sergeant or above, or someone authorised by the Commissioner of Police, to issue police family violence orders if the officer is satisfied that a person has committed, or is likely to commit, an act of family violence.
Interim orders can last until a specified period, or until it is revoked, or a final order is made and served on a respondent, or until an application is refused.
For the courts to grant a final order, it must be satisfied that the person conducting the acts of family or domestic violence has committed the acts, or is likely to do so in the future.
When making a protection application to the court, the usual rules of evidence are not always applicable when making a determination in relation to an application. Additionally, applicants in many jurisdictions are also protected from the possibility of being cross examined by the respondent.
However, it is essential to note that most States require parties to inform the courts of any relevant orders that are in operation, especially if the subject matter of the order is in relation to children or injunctions made by either the Family Court or Federal Magistrates Court, under the provisions of the Family Law Act (Cth).
Can orders be varied or revoked?
For the most part, parties to the matter, an authorised person, or the police, have the ability to apply to revoke or vary the terms of the order if the circumstances regarding the matter have changed. However, certain requirements or conditions must be adhered to and in some States, it is especially difficult for a respondent to vary or revoke an order because the respondent may be unduly influencing an applicant. We can look to s 36(2)(c) and (3) of Queensland’s Domestic and Family Violence Protection Act as an example:
“(2) In considering the application, the court must have regard to--
(a) any expressed wishes of the aggrieved; and
(b) any current contact between the aggrieved and respondent; and
(c) whether any pressure has been applied, or threat has been made, to the aggrieved by the respondent or someone else for the respondent; and
(d) any other relevant matter.
(3) The court may only revoke the order if the court considers the safety of the aggrieved or a named person would not be compromised by the revocation.”
It should be pointed out that a person found in breach of an order may be liable to criminal sanctions that can either result in fines or imprisonment.
Family or domestic violence is a serious matter and if you need any legal assistance, please seek the help of a lawyer who will be able to help.