Relationships / Family

If you are living with a partner or a family member, or have a close relationship with someone in the household, and you are subjected to violence, you may be able to get a protection order on the grounds of domestic violence. These are some questions we are often asked about these situations.

Who Can Apply for a Protection Order?

A person (called the "applicant") can apply for a protection order where they are or have been in a domestic relationship with another person (called the "respondent") and there has been domestic violence.

What is a "Domestic Relationship"?

A domestic relationship is defined as a partner or a family member who ordinarily shares the household, or has a close personal relationship with the other person. Where the situation is a "close personal relationship", the Court will consider the nature and intensity of the relationship. It should be noted that there does not need to have been a sexual relationship between the two people. The definition of a "family member" is extremely wide.

Meaning of "Domestic Violence"

Domestic violence is not only physical or sexual abuse but also psychological abuse and is intended to apply to a range of behaviours including intimidation, harassment or threats.

The purpose in leaving the definition wide is to allow for flexibility. However it does also mean there is some unpredictability to the meaning of psychological abuse, and offenders may exploit this.

The Scope of protection given by an order

The protection order also applies to any children of the applicant. It may also provide for a particular person with whom the applicant has a domestic relationship.

Where the Court makes a protection order against the respondent, the Court may also make it applicable to another person (called the "associate respondent") which the respondent may be encouraging to behave in a manner that would amount to domestic violence against the applicant.

What Protection does the Order give?

The order has standard conditions that prohibits persons against whom it applies from committing domestic violence. The Court also has the power to impose special conditions that are reasonably necessary to protect those persons from further acts of domestic violence.

The non contact condition is automatically suspended for any period where the protected person and the respondent live in the same dwelling, where express consent is given by the protected person.

Firearms or weapons may not be possessed by the respondent. Protection orders are sent to the nearest Police headquarters by the Court. There is an obligation on the officer in charge to establish whether the persons against whom the order applies holds a firearms licence or not and if so to arrange for it to be revoked.

How the Protection Order is Enforced

Where the police have good cause to suspect that a breach of the protection order has been made, they may without warrant, arrest that person. The need to protect the victim (the applicant) of the alleged offence must be the paramount consideration.

Most importantly failure to attend such counselling is a breach of the protection order and constitutes an offence.

Failure to comply with any conditions of the order or failure to comply with a direction to attend counselling is an offence punishable by not more than six months imprisonment or a fine of not more than $5,000.

For a third or subsequent offence (other than an offence involving breach of a direction to attend counselling) occurring within three years, then the penalty is increased to imprisonment for not more than two years. This provision was included because repeat offending rates are high.

Occupation and Furniture Orders

The Act provides for the making of occupation, or tenancy orders, and furniture orders which is the use of the furniture and household appliances that are in the house in which the parties lived. Furniture may also be uplifted which is necessary to set up a new home rather than the victim getting possession of the existing home. However a furniture order is only to be granted where there is a child and the household chattels are reasonably required to equip another dwelling house in which that child lives.

Counselling Programmes

An applicant may request the provision of a programme. In the case of the respondent, programmes will be compulsory. The Court may direct the applicant, a child of the family, and any other person to attend support counselling. Attendance is optional.

Support Counselling is offered to applicants as victims of domestic violence. They just want the violence and the abuse to stop.

In respect of the mandatory counselling for the respondent, the focus of the program is to stop violence by the respondent. It is called "Anger Management". Although standardisation must still allow for variation to take into consideration individual needs and skills or facilitation.

Representative

A representative may make an application for a protection order on behalf of children (ie under the age of 17) or where somebody lacks the capacity to do so themselves, or where a person is unable to make an application because of physical incapacity, for fear of harm, or for similar reasons.

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The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.

 

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