Family Violence: What is it and how to apply for a Protection Order if you feel unsafe

In the ACT, the Family Violence Act 2016 sets out the pathway for a Registrar or Magistrate to make a Family Violence Order in favour of a party seeking protection.

What is family violence?

Family violence includes behaviour towards a current or former partner or spouse, or another family member involving physical, emotional, financial or sexual violence or abuse, as well as threatening or coercive and controlling behaviour. Specific examples of behaviour which constitutes family violence recognised under the Family Violence Act include exposure of a child or children to family violence, sexually coercive behaviour, damaging property and harming an animal.

How do I apply for a Family Violence Order?

An Application for Family Violence Order will be heard by a Registrar or Magistrate in the ACT Magistrates Court.

The Court will generally hear an application for an Interim Family Violence Order on the same day that the application is made. It is heard on an ex-parte basis, meaning that the Respondent is not put on notice that the application has been made until after the application for an interim order has been determined by the Court.

On what grounds may the Court make an Interim (Temporary) Family Violence Order?

The Court may make an interim order if satisfied that the order is required to:

1.      Ensure the safety of an applicant from family violence; or

2.      To prevent substantial damage to an affected person’s property.

If an interim order is granted, it will remain in place until such time as the application for a final family violence order has been determined, unless an application is withdrawn. An interim order should not however be in place for longer than 12 months.

After the application for an Interim Family Violence Order has been determined, the Court will conduct a preliminary conference in order to determine whether there are prospects of the matter resolving by agreement on a final basis. This may include an agreement for an Order being in place for a defined period; an agreement that no order will be made; or in an outcome where one or both parties make an Undertaking to the Court to refrain from engaging in family violence.

On what grounds may the Court make a final family violence order?

The Court may make a final order if:

1.      The applicant (the person seeking protection) has reasonable grounds to fear family violence by the respondent (the person that they are seeking to be protected from); or

2.      The respondent has used family violence against the applicant.

The Court can make a final order that is in place for up to two years, but if requested, the Court may make an order for a longer period of time if the Court is satisfied that there are special or exceptional circumstances that justify it.

Will the Family Violence Order only be recognised in the ACT?

Family Violence Orders are nationally recognised and there is no need to apply for separate orders in different states, if for example, you live between NSW and the ACT and wish to ensure that the Order operates irrespective of your location.

For advice in relation to a family violence application, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe

Protection and Separation

Separating from a spouse can be one of the riskiest times for an individual, particularly where family violence has been a feature of the relationship. The legal definition of ‘family violence’ can be found at section 8 of the Family Violence Act 2016 (ACT) or section 4AB of the Family Law Act 1975 (Cth). The definition in both pieces of legislation is broad and canvasses many different types of behaviour that constitute family violence.

Sometimes an individual may not recognise that certain behaviours they have experienced during their relationship constitute family violence until they are out of that relationship. Other times, an individual may have felt powerless or not known what avenues are open to them to protect their safety.

In the ACT, any person can apply for an interim Family Violence Order (FVO) for their immediate protection, or to prevent substantial property damage. Applications for a FVO are generally heard ex parte, meaning that the Court considers the applicant’s evidence in the absence of the respondent (the person who the FVO is being sought against).  

If the Court is satisfied that an applicant is in need of immediate protection, an interim FVO will be granted on the same day as the application is made. The interim FVO generally remains in place for 12 months, pending a final hearing where the Court will determine the application on a final basis (namely whether a final order should be made protecting the applicant). An interim FVO can be extended in some circumstances.

In the ACT, the Australian Federal Police will serve a copy of the application and the FVO on the respondent.

Either party can file documents seeking to amend an FVO, if amending the order will not adversely affect the safety of the protected person. For example, if the protected person’s circumstances have changed since the making of the FVO, or if the FVO restricts the respondent’s rights unnecessarily.    
If you are experiencing family violence, or are at risk of experiencing family violence, it is worthwhile speaking to one of our experienced family lawyers. We can advise you on your prospects of successfully obtaining an FVO and what type of restrictions you might want to seek in a protection order based on your experiences in the relationship, and your concerns.  

We can also advise on the next steps once an FVO has been granted (whether you are the applicant or the respondent), including any flow-on effects that an FVO may have on your family law matter.

In the event you are concerned for your safety, there are a number of services available to you:

1. If you are concerned for your immediate safety, you should contact 000.

2. The Domestic Violence Crisis Service offers assistance with safety planning and can be contacted on (02) 6280 0900.

3. To discuss a potential breach of a Family Violence Order, you should contact 131 444 (the non-urgent ACT Policing number).

For advice in relation to your property settlement, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Anika Buckley