When you apply for a Protection Order you are applying to be protected from violence and harm caused by another person to you. To qualify you must be or have been in a domestic relationship with the violent person ("the respondent"): ie have been in a close and personal relationship, are the parents of, related to through blood or marriage, etc.
The respondent need not have been physically violent. Under the Domestic Violence Act 1955, violence is defined broadly and can include intimidation, harassment, damage to property, threats of physical abuse, sexual abuse or psychological abuse. Your children are automatically protected under the Protection Order. If you want anyone else to be protect, they have to be listed and also in a domestic relationship with the respondent.
At the same time, you can also apply for an Occupation Order to stay in your house and for a Furniture Order that allows you to take some furniture with you to the place you are going to be residing in. You can apply for your address to be kept confidential so the respondent cannot find where you have moved to and are now residing. We can do all of these forms for you.
There are two types of a Protection Order Application: with notice and without notice. The former takes around six weeks to process through the Courts and the latter usually takes less than a day for an Order to be granted by the Court. The difference between with notice and without notice is the severity of the claim.
A without notice application will go before the Family Court for the Judge's consideration soon after it has been filed. If the application is made on a without notice basis the decision will likely be made that day, but can take up to a few days for the Judge to make his or her final decision. As it is an urgent application the Judge will consider your application without getting the respondent's side of the story. Without notice orders are usually made after a crisis event or situation. To succeed, one needs to show that any delay in allowing the Order would cause undue hardship to you or your children.
An Order made on a without notice application is a temporary Order and the respondent will get an opportunity to be heard before the Family Court before a permanent Order is made. The temporary Order lasts for three months and if the respondent does not respond then the Order becomes permanent.
Conversely, a with notice application often occurs when you have filed a without notice application but the Judge does not think that undue hardship or a risk of harm to you or your children is imminent. Your application will become an 'on notice' one and the respondent will be notified.
If the respondent is served but does not respond then you can ask for a permanent Protection Order to be issued. However, if the respondent does choose to respond a hearing will take place with both you and the respondent present. While the hearing of the application will be set down for a date that is "as soon as practicable" it can take up to six weeks.
Once your application has been approved there are certain conditions that the respondent must adhere to. The Court can include specific conditions but the standard ones are as follows:
The respondent must not:
If the respondent has any firearm they must hand this into the Police within 24 hours, or earlier if requested by the Police. If the respondent has access to firearms or weapons the Police, Court and applicant's lawyer must be told.
The Order will most certainly include non-contact conditions to which the respondent must follow. The protected people can choose to agree to contact but the standard non-contact conditions include that the respondent will not:
If the respondent breaches the Protection Order they will be arrested and cannot be bailed out by the Police for 24 hours. The respondent can then face a maximum penalty of imprisonment of up to three years or they can be fined. It is the Police's policy to arrest the respondent if they breach the Order at any stage.
The respondent will also have to attend the Court-appointed programme 'Stopping Violence'. If they fail to attend the respondent risks being arrested, put in jail for six months or fined up to $5,000.00.
Finally, in terms of children, while the Protection Order automatically includes any children, you may also want to consider applying for a without notice Parenting Order which will provide you with more certainty. The Parenting Order will formally set out who has the day-to-day care of the children and who can have contact with them. A Judge will always consider the children's safety before letting them have contact with a violent person – ie the Judge may allow the respondent to see the children but only for a few hours a week and with a supervised and trusted person. You can apply for a without notice Parenting Order at the same time as you file the Protection Order and a Judge will decide both.
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© McVeagh Fleming 2019
This article is published for general information purposes only. Legal content in this article is necessarily of a general nature and should not be relied upon as legal advice. If you require specific legal advice in respect of any legal issue, you should always engage a lawyer to provide that advice.