What are protection orders?
Protection Orders are legal orders made to protect a vulnerable individual from violence or abuse
In NSW, protection orders are also called Apprehended Domestic Violence Orders (ADVOs). They are a legal order made to protect a vulnerable individual from violence or abuse.
Protection orders made after 25 November 2017 are recognised automatically and enforceable nationally. They are generally made in the context of domestic or family abuse from intimate partners.
Conditions under protection orders
The individual who applies for a protection order can ask for different conditions to be made. Conditions refer to certain rules that the defendant (the person against whom the order is sought) is not able to break. Examples of conditions include:
- Harming the protected individual
- Threatening to harm the protected individual
- Stalking or contacting the protected individual
- Going to areas that the protected individual regularly frequents
- Going within 100 meters of the protected individual
Protection orders are meant to recognise that violence can occur both in family and non-family settings and can take many different forms.
Protection orders are meant to recognise that violence can occur both in family and non-family settings and can take many different forms. A range of behaviors, both physical and non-physical can constitute domestic or family violence and these patterns of behavior can occur in a single one-off event or can occur over a long period of time.
Because of the wide range of behavior that constitutes abuse, the wording of conditions are written broadly to ensure that the protected person is safe.
How does someone apply for a protection order?
Whilst the application process for obtaining a protection order varies by states and territories in Australia, there are two general approaches to obtaining one.
Effect on the victim:
The first approach to obtaining a protection order involves focusing on the effect on the victim. This is the approach taken in NSW. In NSW, an applicant is required to show that they have reasonable grounds to fear, and must actually fear, the commission of a personal violence offence. The commission of this offence does not have to be against the applicant themself but can also be against children in the family or relationship.
The exceptions to this requirement of having to subjectively feel fear are if the protected person is a:
- Person below average intelligence
- Person who has been historically subjected to family violence by the person against whom the order is sought and it is reasonably likely that the violent person will continue to behave violently against the applicant.
In these cases, the court can be satisfied that the making of a protection order is necessary without the protected person needing to show that they subjectively fear the commission of a personal violence offence.
The second process an individual can undertake to obtain a protection order is through the acts-based test. This process is primarily used in Victoria and Queensland. This involves focusing on the commission of past domestic or family violence and requires that the applicant also proves that the violent person is likely to use violence against the protected person in the future.
The court has the discretion not to make a protection order if it deems that it would be unjust
It is important for applicants to note that even if an applicant has satisfied the requirement for a protection order in a particular state or territory, the court has the discretion to not make a protection order if it deems that it would be unjust.
Can the police apply for a protection order on my behalf?
The police can apply for a protection order on behalf of an individual. The police can apply for a Provisional Apprehended Violence Order if the matter is extremely urgent.
A police application for a protection order can be made either:
- By the applicant attending a police station and telling them that they would like to apply for a protection order
- After the police have either attended or taken a report of an incident.
The applicant will need to provide a statement to a police officer which includes the following information:
- The full name of the defendant (person who is harming or has threatened to harm the applicant)
- The address, age, and birthday of the defendant
- The relationship between the applicant and the defendant
- The name of anyone else that the applicant wants protected in the order (e.g. children)
- Evidence of any harm to the applicant, children, pets, or property
- Details of the incident that has caused the applicant fear and any evidence which shows the likeliness of a violent incident recurring
- The orders the applicant believes they will need to be sufficiently protected under the protection order.
After the applicant has made their statement, they will sign their statement to show that they believe that all the information they have provided to police is truthful. Then the police will serve the application upon the defendant to let them know that a protection order has been applied for against them.
What happens if a protection order is breached?
Whilst a protection order is not a criminal charge it is against the law to break a condition. If an individual believes that the other party against whom the order has been made is breaching it, they should notify police immediately. It will also be important for the protected person to keep records of when they believe there have been breaches. This will be crucial for evidence if the defendant denies these allegations.
If you need any assistance regarding an application for a protection order, please feel free to reach us via the contact form.
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