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:
(a) Protection orders, and
(b) 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:
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.
(a) Subject to subsection (1), this Act is also to be administered under the following principles:
(i) people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives minimised;
(ii) 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;
(iii) 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;
(iv) 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;
(v) 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.
