Personal protection orders – what options do you have?

All states and territories have taken significant steps to protect people who are threatened within the context of a family or domestic relationship.

Depending on where you live, you may find yourself needing to apply for an apprehended domestic violence order (ADVO) if in NSW or a family violence order in the ACT.  Changes to legislation means that ADVO’s and FVO’s are nationally recognised across both jurisdictions and also in other states and territories in Australia.

In the ACT, the process of obtaining a FVO is quite different compared with other jurisdictions.  It is mostly based on mediation between the parties which is relatively successful in dealing with the majority of matters without the emotional consequences and costs usually associated with going to a full trial.

Family Violence – ACT

The protected person (applicant) or police on behalf of the protected person can apply for an interim FVO if they or a family member has been subject to physical or sexual violence; emotional, psychological or economical abuse; threatening behavior or coercion that controls or dominates and causes fear for their safety or wellbeing.[1]

In most cases an interim order will be granted which will limit the respondent’s contact with the applicant and children in the family if they are also at risk.

Respondents are usually restricted from the residence of the applicant, work site of the applicant, school where the children attend, approaching within a distance of 100m and communicating with the applicant.  The period of the restriction is usually 12 to 24 months depending on the severity of the matter, but the parties can agree to a shorter period.

In Family Violence situations a longer period is usually needed as parties will continue to have some type of relationship due to sharing parenting responsibilities for children and other family connections through relatives.

Mediation

If you find yourself a party to an interim FVO you will be asked to appear for a pre-conference at the ACT Protection Unit which is part of the ACT Magistrates Court.

You will not come into contact with the other party and will be asked to wait in separate rooms until a deputy registrar discusses the matter with you.

While you are not required to have a lawyer, it is usually a good idea to have one or a support person.  Family violence orders usually have implications for family law matters and your employment particularly if you are in the Australian Public Service or a security assessed position.  (See our article on Family Violence and Family Law)

If you are a respondent, the deputy registrar will explain the nature of the allegations against you and you have three options:

  1. Undertakings – you agree to restrict your contact with the applicant for a specified period of time. An undertaking is not an order of the court but is like an agreement.
  2. Consent order on a non-admission basis – orders are made by the court after the parties consent but there is no record of findings in relation to allegations made by the applicant. If the orders are breached it is likely the respondent will be charged with a criminal offence.
  3. Hearing by the Magistrate – if the parties cannot agree to undertakings or consent orders, the matter will proceed to a hearing where the magistrate will make findings of fact and decide to make an order or not. A breach of any orders made by the magistrate will result in the respondent being charged with a criminal offence.

In practical terms, consent orders and orders made by a judge offer the applicant and children the same level of protection.

There is always a risk for both parties in going to a full hearing.  Both parties will have an opportunity to present their case and there is no guarantee that the judge will find your argument more persuasive.

There are advantages to the respondent in agreeing to undertakings or consent orders in terms of their employment.  In public service employment or other jobs that require a security clearance, you should check whether you are required to report and it is usually preferable to say that the court has made no findings against you in terms of your alleged conduct.

Breach

As undertakings are essentially an agreement between the parties and not orders, there are no immediate consequences if the undertaking is breached.  However, an applicant can reapply for a FVO immediately following a breach of an undertaking and the breach will likely have negative consequences for the respondent in any future FVO hearing.

A breach of a consent order or court ordered FVO is a criminal offence with a penalty of up to five years imprisonment.  Breach of an order meant to protect a person from family violence is considered serious by the court.  The community needs to be reassured orders are followed and people who breach orders are appropriately punished.

Conclusion

The Courts and police take the issue of family violence seriously. The definition of such violence is very broad.  Breaches of such Orders are also treated seriously, and the Court has the power to impose a range of significant penalties, including imprisonment.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6201 7243 or email [email protected].

[1] Family Violence Act 2016 (ACT) s 8

By | 2018-11-07T09:39:42+00:00 November 7th, 2018|Uncategorized|0 Comments