family violence is unfortunately a common occurrence for people separating. During this tumultuous period disagreements and/or acrimony can lead to, or exacerbate family violence between ex partners and/or children of the relationship. As such, there are many Australians that require the assistance of a protection Order from the police post-separation.
What is an Apprehended Violence Order (Protection Order)?
There are two types of Apprehended Violence Orders:
- Apprehended Domestic Violence Order (ADVO)
- Apprehended Personal Violence Order (APVO)
An ADVO is an order that relates to the protection of a person/s where a domestic relationship exists between the parties.
A domestic relationship includes a person who is:
- Married, de facto, or intimate relationship with another person;
- Persons who living in the same household;
- A relative of another person;
- A dependent of another person;
- In the case of an Aboriginal person or a Torres Strait Islander, a person who is, or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person’s culture.
Only police can apply for an ADVO if they believe and suspect that it is necessary to ensure the safety and protection of the protected person. In the instance you have fears for your safety, you may request the Domestic Violence Liaison Officer at your local police station.
An APVO is an order that is applied for the protection of a person/s where there is no domestic relationship between the parties. This includes co-workers and neighbours. In the case of an APVO, the protected person needs to make a separate application in the Local Court.
What happens if I am served with an Protection Order?
Dependent on the circumstance, if police have applied for an Protection Order against you, they may have also charged you with a criminal offence.
When police attend your residence, if you are criminally charged, you will be arrested and police may release you without bail, release you on bail, or refuse you bail. If you are refused bail, your matter will be listed before the Court, and you will need to make an application for bail.
Generally, police will serve you with the following:
- Court Attendance Notice – this sets out the charges that you are alleged to have committed and informs you of when you are required to appear in Court;
- Facts sheet – this sets out the facts of the allegations; and,
- Provisional ADVO – this sets out:
- Who the protected person/s is/are;
- The conditions of the ADVO; and,
- The grounds of the Application.
When the matter is listed before the criminal court, you will have to respond to the charges and Protection Order application. You can either:
- Plead guilty – meaning you may be convicted and sentenced. An Protection Order will automatically be made against you; or
- Plead not guilty – meaning your matter will go to hearing and the Court will need to determine whether you have committed the alleged offences. If you plead not guilty, there is a specific process that needs to be adhered to. You will not receive a hearing straight away.
If there are criminal charges attached to the Protection Order, you should obtain legal advice as to the process and your individual circumstances.
If no criminal charges are attached to the Protection Order, police will attend your residence to serve you with a copy of the Provisional Protection Order. As above, the Provisional Protection Order will have the conditions you are required to abide by. A Provisional Protection Order has the same effect as an Interim or Final ADVO. If you breach the Protection Order you can be charged with a criminal offence.
The Provisional Protection Order will set out what date you are required to attend court for Mention (being the First Court Event).
What happens next?
At each court event for the Protection Order, you will be asked whether you consent to the Protection Order. If you don’t, it will proceed to a contested hearing.
Police have the discretion to withdraw the Protection Order at any time, including on the day of the contest hearing.
You can consent to the conditions of the Protection Order on a without prejudice basis. This means that you agree to comply with the Protection Order, but you do not agree with the grounds/allegations raised in the Protection Order.
If you agree to the Protection Order, a Final Protection Order will be made, generally for a term of two years.
What impact does an Protection Order have on Family Law proceedings?
If there are Family Law proceedings on foot, you are required to file a current Protection Order with the Family Court (the Federal Circuit and Family Court of Australia). This is regardless of whether it is a Provisional, Interim or Final Protection Order.
Additionally, in parenting proceedings, parties are required to complete a document called ‘Notice of child Abuse, Family Violence or Risk’. This document is used to ascertain whether there are allegations of risk of harm to parents or children (whether disputed or not).
As such, consenting to an Protection Order in the criminal courts can have an impact on Family Law proceedings, even if it is agreed to on a without prejudice basis.
If you are the defendant in an Protection Order, this may mean that there is a “shadow” placed against you at first instance, even though you dispute the allegations raised against you. This “shadow” can be overcome on a final basis, but it may mean that for an interim period, you will need to prove to the Court that you have the ability to effectively co-parent with your ex, and to protect your child/ren from harm.
If you are the protected person in an Protection Order, the ‘Notice of Child Abuse, Family Violence or Risk’ form is your opportunity to outline to the Court, in a succinct manner, the risk allegations that you raise and the Orders that you propose the Court make for your safety, and the safety of your child/ren.
If you have been served with an Protection Order and there are Family Law proceedings on foot, you should seek advice from one of our lawyers about the potential impact on each of the separate proceedings, particularly if there are inconsistencies in the evidence that has been filed with the separate Courts.
For more information or a confidential discussion, please contact our experienced Family Law team.
