Domestic Violence Protection Order

What are Domestic Violence Protection Orders?

A court can make a domestic violence order against a person (the respondent) for the benefit of another person (the aggrieved).  There are two separate orders a court can make:

• Protection orders, and
• Temporary protection orders.

Sometimes, the court can make a domestic violence order even though the respondent is not notified about the application for a domestic violence order or does not appear in court.

When can a court make a Domestic Violence Protection Order?

Section 37 of the Domestic and Family Violence Protection Act 2012 outlines when a court may make a protection order:-

(1)    A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that—
(a)    a relevant relationship exists between the aggrieved and the respondent; and
(b)   the respondent has committed domestic violence against the aggrieved; and
(c)    the protection order is necessary or desirable to protect the aggrieved from domestic violence.

What would the court consider it necessary or desirable to make a domestic violence protection order?

In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence, the court:-

(a)    must consider the principles mentioned in section 4; and
(b)   may consider whether a voluntary intervention order has previously been made against the respondent and whether the respondent has complied with the order.

The principles mentioned in section 4 of Domestic and Family Violence Protection Act 2012 are:-

1. This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.
2. Subject to subsection (1), this Act is also to be administered under the following principles
   (a) people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives minimised;
   (b) perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;
   (c) if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics;
   (d) in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is most in need of protection should be identified;
   (e) a civil response under this Act should operate in conjunction with, not instead of, the criminal law.

Are Children included on Domestic Violence Protection Orders?

Children can be included on a domestic violence protection order to protect them from violence.  This can include your children, or children who usually live with you (i.e. a child who spends time at your home on a regular or on-going basis, including step-children or other children who spend time at your home on weekends or school holidays).  It can also include unborn children if you are pregnant (the order would have a condition that takes effect when the child is born).

The Court will include children on a domestic violence protection order if they believe it is necessary or desirable to protect the child from domestic violence.  A child has been exposed to domestic violence if they hear, see, or “otherwise experience” domestic violence. This includes helping a family member who has been hurt as a result of domestic violence, or seeing damaged property in the home.

If the court is aware that you have children living with you or regularly visiting your home, then it must consider adding those children on the domestic violence protection order.

What is a Temporary Protection Order and when can a court make one?

A temporary protection order is an order made in the interim period before a court decides whether to make a protection order for the benefit of an aggrieved.

A court can make a temporary protection order if:-

(a)     the court adjourns the hearing of an application for a protection order  or the hearing of an application for a variation of an order; or
(b)    the applicant for a protection order or the variation of an order has asked the court for the application to be heard by the court before the respondent is served; or
(c)     an application for a temporary protection order is made to the court by a police officer.

A court may make a temporary protection order only if it is satisfied that:-

(a)    a relevant relationship exists between the aggrieved and the respondent; and
(b)   the respondent has committed domestic violence against the aggrieved.

A court need only consider evidence that is sufficient and appropriate having regard to the temporary nature of the order when deciding whether to make a temporary protection order.

What are the conditions of a protection order?

What is the police’s role in domestic violence protection orders?

Often police officers are the first to respond to incidences of domestic and family violence.  Under the Domestic and Family Violence Protection Act 2012, the police have the power to issue a protection notice when they attend a domestic violence incident and they reasonably believe that domestic violence occurred.

This notice is taken to be an application for a protection order to be determined in the Magistrates Court at a later date.  The notice includes a standard condition that the respondent must be of good behaviour and must not commit further domestic violence towards the aggrieved.  Police may also impose the following ‘cool down’ conditions if they believe it is necessary and desirable to do so:-

(a)    that the respondent is prohibited from entering (or attempting to enter, or remain at) a stated premises, or approaching within a distance of stated premises;
(b)   that the respondent is prohibited from approaching (or attempting to approach) within a stated distance of the aggrieved; and
(c)    that the respondent is prohibited from contacting (attempting to contact, or asking someone else to contact) the aggrieved.

Police also have the power to apply to the court for a protection order or a variation of an existing protection order.

What if a domestic violence protection order or police protection notice has been taken out against me?

If someone has applied for a domestic violence order against you, you have four options in moving forward.  You can:-

(a)    Consent to an order being made.
(b)   Ask for the proceedings to be adjourned so you can get legal advice.
(c)    Oppose the orders the aggrieved has asked for.
(d)   Do nothing and not attend court (although an order may still be made in your absence).

You must consider the following if there is a domestic violence order made against you:-

• Do not break the conditions on the order or the notice, even if you do not agree with it.
• Read the order or notice carefully and contact us for legal advice so that we are able to explain the conditions imposed against you.
• Get support from family, friends or a support service.  We are able to refer you to appropriate support services available in your area.

A domestic violence protection order is a civil order, which means that you are not charged with a criminal offence unless you breach the order.  You must follow the conditions set out in the protection order.  If you breach the conditions in the order, the police can charge you with a criminal offence where you will face serious penalties.

Should I get legal advice if a domestic violence protection order is made against me?

You should obtain legal advice if there is a domestic violence protection order made against you.  If a domestic violence order is made against you, it may affect any licences and other cards you hold, including weapons and security licences.

The conditions of an order or notice are very serious and it is important to obtain legal advice to fully understand the conditions imposed against you.  Breaching a domestic violence protection order (including any temporary orders or police protection notices) is a serious criminal offence. If you are found guilty of breaching a protection order, you could face serious penalties, including terms of imprisonment.

We have experienced lawyers who are able to assist you if you have a domestic violence order taken out against you. Contact us today.

Breaching a Domestic Violence Protection Order

Section 177 of the Domestic and Family Violence Protection Act 2012 makes it an offence to breach the conditions of a protection order.

You should contact us if you are charged with breach of a domestic violence protection order made against you.  Our lawyers are experienced in these charges and can give you detailed advice around the charge and your options.

Temporary & Domestic Violence Protection Order Process for a Respondent (Flow Chart)

Stage 1. a) DVO Application is made b) Potential for Temporary Protection Order can be made c) Respondents first court appearance

Stage 2. Adjourn for further mention

Stage 3. Proceeding to trial

You should contact us about what defences may be open to you if you are in breach of a domestic violence protection order.