Family Law Newsletter
Family violence protection orders: Who can apply? And what behaviours may be subject to an order?
Instances of family or domestic violence can leave victims feeling powerless, however, all jurisdictions in Australia recognise the unique nature of domestic violence and have instigated a number of laws and orders to protect spouses, children, relatives, and household members from violence at home.
Applying for a protection order
A number of parties can apply for a protection order such as victims, the police and certain authorised persons who may be entitled to apply for an order on behalf of victims.
Applications from victims: family members who are the victim of violence, can make an application on their own, or alternatively, request a lawyer to make an application. However, it should be highlighted that depending on the state or territory, victims must be in a defined familial relationship if they wish to bring an application for a protection order.
Applications from the police: one of the important aspects of applying for protection orders is the ability for police officers to make an application on behalf of a victim. However, the responsibility of the police to make an application for a protection order can differ between the jurisdictions.
Applications from authorised persons: certain authorised persons are able to bring an application on behalf of the victim, and in such a circumstance, the authorised person stands in the shoes of the victim. However in some states such as Victoria for example, written consent from either the adult victim or a parent of the child, and/or leave of the court may be required when an application is made.
What behaviours are subject to a protection order?
There are a number of behaviours that may be subject to an order, and the behaviours that can be subject to an order do not necessarily have to be criminal.
Although the definition of what constitutes domestic or family violence may differ between the jurisdictions, the behaviours that may be subject to an order broadly covers conduct that can include:
- physical injury or abuse;
- sexual abuse;
- property damage;
- stalking;
- offensive, threatening, harassing, tormenting, or intimidating behaviour;
- deprivation of liberty, or threats made to deprive liberty;
- injuring animals and pets.
In addition to physical, psychological and emotional abuse, which are behaviours that may be subject to a protection order, some jurisdictions include ‘economic abuse’ as well, which can include coercive behaviour such as forcing the victim to relinquish assets or income for example.
What are the requirements that must be met for an order to be issued?
The requirements for the issuing of an order vary between the states and territories. For example in Victoria and Queensland, the requirement of past family violence, and a likelihood that it will happen again underpins the requirement in the issuing of an order. In New South Wales, it’s a ‘fear’ by the victim, while in Western Australia, the requirement of either past abuse, and a likelihood of repeat, or reasonable fear of future abuse, can require an order to be issued.
What are the types of orders which can be made?
Some of the types of orders that can be made include:
- orders prohibiting domestic violence;
- orders that restrict movement or conduct;
- ouster orders, which allows the court to expel a person from the family home for example.
