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Domestic Violence Protection Orders in the Australian Capital Territory
In the ACT, the Domestic Violence and Protection Orders Act 2008 provides for the making of two kinds of protection orders, both of which are designed to protect an individual (the aggrieved person) and their property from violence at the hands of another person (the respondent). These two types of protection orders are called “domestic violence orders” and “personal protection orders”.
Types of Protection Orders
Domestic violence orders are available for people who suffer from, or are exposed to, domestic violence. Personal protection orders are available for people who suffer from violence that is not domestic violence. Personal protection orders can also specifically relate to violence in the workplace (i.e. a workplace order). If a domestic violence order is required urgently, a police officer may apply for an emergency order to a judicial officer such as a Magistrate. Otherwise, protections order will usually be made by the Magistrates Court.
Domestic violence vs personal violence
Domestic violence orders are granted in respect of violence in a domestic situation. This may include physical or personal injury (e.g. hitting or slapping), damage to property, harassing or offensive conduct and threats to commit domestic violence against a person who is in a domestic relationship with the respondent. Examples of a domestic relationship include: being the spouse or former spouse of the respondent, or a being a relative of the respondent. Personal violence orders are granted in respect of personal violence, which consists of the aforementioned kinds of violence against a person with whom the respondent is not in a domestic relationship. In the case of workplace orders, personal violence means violence, or threatened violence, against a person in their capacity as an employee.
Applying for a protection order
If you are a victim of personal violence or domestic violence you can apply directly to the Magistrates Court for a protection order. Alternatively, a police officer can apply on your behalf. If the aggrieved person is a child, then an adult that is not under a legal disability or a litigation guardian may also apply for a protection order on their behalf. A child can also apply in their own right for a domestic violence order, and with the Court’s leave for a personal protection order. In the case of workplace orders, the employer and not the employee who suffers the violence applies for the order. A protection order cannot be sought against a person under 10 years of age.
How is a protection order made?
After an application is made to the Magistrates Court for a protection order, the Registrar of the Court will set a date for the application to be heard. That date will be no later than 10 days after the application was made, unless an interim personal order is also being sought, in which case it will be no later than 2 days. Interim protection orders are made for the period from the application to the time the final protection order is made, and operates in a similar way to a final order. A preliminary conference may be held by the Registrar with the aggrieved person and the respondent, and if the Registrar thinks that mediation might resolve the application, the parties will be given time to mediate. Once the matter comes before the Magistrates Court, the actual protection order may be made if the Magistrates Court is satisfied that the respondent has committed domestic violence or personal violence against the aggrieved person. The Court will consider a number of things in deciding whether to make the order, including but not limited to the aggrieved person’s accommodation needs and any hardship that may be suffered by the respondent if the order was made. The order will contain a number of conditions on the respondent’s behaviour.
When will emergency orders be made?
Police officers can apply to a judicial officer (including a Magistrate) if a domestic violence order is required urgently, so if you are in danger you should contact the police immediately. Such an application can be made by telephone. The judicial officer may make the emergency order if the application is made outside the sitting hours of the Magistrates Court, the respondent has behaved in a way that suggests an emergency order is needed to prevent an aggrieved person from suffering violence or substantial damage to property, and the respondent cannot be arrested. If the emergency order is made, it will likely include a condition prohibiting the respondent from visiting the aggrieved person at their home. Such an order generally lasts for a maximum of two days and must be served on the respondent.
The effect of a protection order
A protection order sets out the conditions that must be followed by the respondent. These conditions may, for example, prohibit the respondent from being on premises where the aggrieved person lives or works, or being within a particular distance of the aggrieved person. They may also require the respondent to give particular personal property to the aggrieved person. The personal order will also state the duration of the order; a domestic violence order will generally apply for a maximum period of two years, whilst a personal protection order will generally apply for a maximum period of one year.
What if I apply for the wrong kind of protection order?
It is possible to apply for the wrong kind of protection order; for example, if you are a victim of personal violence and not domestic violence, but you applied for a domestic violence order. In these circumstances, the Magistrates Court may grant the correct kind of protection order if you made an honest mistake in your application. If the application for the wrong kind of protection order is decided and the wrong kind of protection order is made (e.g. you applied for a domestic violence order and it was granted, but you were a victim of personal violence and not domestic violence), then the order may be treated as the right kind of protection order.
Breach of a protection order
If you are an “aggrieved person” under a protection order and the protection order is breached by the respondent, you should contact the police immediately. It is a criminal offence for a respondent to breach a protection order, but only if the respondent was present when the protection order was made or was personally served with a copy of the protection order. It does not matter whether the breach occurred inside or outside of the ACT. The maximum penalty for this offence is a fine of 500 penalty units (i.e. $75,000), 5 years imprisonment or both.