What happens when someone applies for a domestic violence protection order

February 9, 2017

Ongoing advocacy and increased media coverage of the issue has, among victims, perpetrators and the broader community, led to greater awareness of what constitutes domestic and family violence.

“Domestic” and “family” violence might at first seem a redundant term, but they are used independently to capture the experiences of all people – for example, partner violence, elder abuse and violence between other family members.

Police and court statistics across Australia suggest that more victims are coming forward to report cases of domestic and family violence. Usually, they are seeking safety in form of a domestic violence protection order.

Choosing a legal avenue of support and protection can be daunting, as much as it is confusing, for those experiencing abuse. Alleged offenders are equally confused by the law and its anomalies.

Within the legal system, there are differences between criminal and civil law. Therein lies the biggest challenges to those who need to engage with the justice system.

So, what actually happens when someone applies for a protection order?

Since protection orders fall under state and territory rather than federal law, their nature and conditions can vary across jurisdictions.

Those who are protected

As a general rule, protection orders are available for various forms of domestic and family violence, including:

  • physical or sexual abuse
  • emotional or psychological abuse
  • economic abuse
  • threatening behaviour
  • coercive behaviour, or
  • any other behaviour that threatens or controls a person and causes them to fear for their personal safety or wellbeing.

All protection orders include at least one victim, and one abusive person. However, more than one person can be protected by an order – potentially, the victim’s children, other family members and/or a new partner.

Who lodges the application?

There are two predominant forms of domestic violence protection orders – police applications and private applications.

In the case of police applications, the police complete and lodge the application. Private applications can be made by the immediate victim or another party authorised by the victim to act on her or his behalf. In some instances, a court may decide to make an order without prior application.

Police and private applications must be lodged in court, require a magistrate’s decision, and come into force only once the respondent has been served.

Because there can be delays when serving orders, victims are often confronted with ongoing abuse. This can be particularly challenging when a respondent actively avoids police contact.

The process of issuing an order

When an application is lodged, a magistrate considers the details.

For an application to be granted, a victim must always appear in court.

However, protection orders can be granted in the absence of an alleged abuser, providing the perpetrator has been told about the application and the court date.

When an alleged abuser does attend court, he or she can agree or disagree to an order. If they disagree, a subsequent court hearing will be scheduled and a temporary order might be issued to protect the victim in the interim.

In most cases, respondents agree to an order being made, often without admitting to specific domestic or family violence allegations against them.

If both parties are in court, an order is served then and there, and takes immediate effect.

If the respondent does not attend, and an order is granted in their absence, the order does not take effect until the respondent has been served. In other words, an order does not offer legal protection to the victim – or any other parties named on the order – until police provide the respondent with a copy of the order.

Originally Published by The Sydney Morning Herald, continue reading here.

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