Anyone may apply for a Family Violence Order (an FVO) against a family member if they are in fear for their safety and in need of ‘immediate protection’. The definition of ‘family member’ is set out at section 9 of the Family Violence Act 2016 (Cth).
Upon application, the Court may grant an interim FVO in the absence of both parties putting on further material before the Court. An interim FVO will place certain restrictions and conditions on the respondent to the application, preventing them from engaging in family violence. For example, this may include a prohibition on attending a protected person’s workplace or home; or a prohibition on contacting the person.
The respondent to an application for a final FVO may file an application to revoke the interim FVO, for example if the restrictions contained within the order are overly restrictive or they can demonstrate the applicant does not require the protection of an order.
An interim FVO can become final either by consent on a without admissions basis (meaning the Court has not made any findings); or at a final hearing, where the Court has ‘tested’ the evidence and made findings as to the respondent engaging in family violence against the protected person.
Unless there are ‘special or exceptional circumstances’, a final Family Violence Order will generally remain in place for a period of 1 or 2 years. Sometimes, the protected person might agree to the order being in place for a shorter period (say 6 months).
If a protected person is still in need of protection and the FVO is due to expire, they can file an application seeking to extend the order. In an application to extend the order, the respondent then bears the onus of proof to demonstrate that the applicant is no longer in need of protection.
If your FVO is due to expire, it is crucial that you take steps to seek an extension of the order prior to the order expiring. If you do not apply for an extension until after your order has expired, you will face a ‘fresh’ application and the burden of proof remains with you as the applicant to demonstrate that you are in need of protection.
If you are considering applying for an FVO or whether to seek an extension of your order; or if you are the respondent to an application, you should obtain specialist legal advice. The ACT Magistrates Court website also contains valuable information, including frequently asked questions. A lawyer will be able to help you collate your evidence and advise you about the merits of your case, including possible settlement options.
Contact Robinson + McGuinness today to arrange an appointment by email at info@rmfamilylaw.com.au or 02 6225 7040 or get started now online with one of our experienced family lawyers.
For family violence support and assistance, contact 1800 RESPECT via the National Helpline on 1800 737 732.
Author: Anika Buckley, Associate