State and territory courts exercising jurisdiction under family violence legislation

Powers

15.53 While the role of the family courts is to resolve disputes that arise between separating spouses or de facto couples, the focus of state and territory courts exercising jurisdiction under family violence legislation is the prevention of family violence and the protection of persons who experience or who are at risk of family violence.[59]

15.54 The primary way in which state and territory courts achieve this objective is by making protection orders. The purpose of family violence protection orders is to protect people from future family violence. This is usually done by prohibiting a person who has used, or threatened to use, family violence from engaging in certain conduct. Family violence legislation generally allows courts to impose any restriction on a person who has used or threatened to use family violence that it thinks necessary or desirable for the protection of the person at risk.[60] For example, a protection order may prohibit a person from: behaving in an intimidating, offensive or abusive manner towards the person protected; communicating with the protected person; or approaching or entering particular premises where the protected person lives or works.[61]

15.55 Family violence legislation in each state and territory confers power to make protection orders on courts of summary jurisdiction in the relevant jurisdiction—that is, local or magistrates courts (collectively referred to in this chapter as ‘magistrates courts’).[62] Courts of summary jurisdiction also have limited jurisdiction under the Family Law Act, discussed in more detail in Chapter 16.

15.56 State and territory magistrates courts also hear minor offences, conduct preliminary hearings for serious offences and deal with civil proceedings for amounts under a certain monetary threshold. Magistrates may also sit on specialist children’s courts which deal with child protection matters and juvenile offenders. In some jurisdictions, children’s courts can also deal with protection order matters—for example, where a child seeks a protection order or a protection order is sought against a child.[63]

15.57 Some kinds of protection orders may be made by authorities other than judicial officers. In some jurisdictions, registrars of the court may make interim protection orders.[64] In addition, police officers in some states and territories can make temporary protection orders for the immediate protection of a victim of family violence.[65] The following outline focuses on the procedures involved where a court makes a protection order. The processes associated with police-issued protection orders are discussed in Chapter 9.

Procedures

15.58 The court procedures involved in making a protection order vary across the states and territories. There may also be some variation between courts in the same state or territory, depending on where the court is located—for example, whether it is in an urban, regional or remote area—and how the court operates—for example, whether the court has a specialist family violence list. The following section provides a general outline of the court procedures common to most jurisdictions.

Applying for a protection order

15.59 The first step for a person seeking a protection order is to make an application to the court. Generally, an application for a protection order may be made by:

  • the person seeking protection;

  • a police officer; or

  • another person acting for the person for whose protection the order would be made, such as a child’s parent or guardian.[66]

15.60 A person seeking a protection order under state or territory family violence legislation (the applicant) applies for an order by completing an application form.[67] In the application form, the applicant sets out the reasons why he or she seeks a protection order, recent incidents of family violence, the history of the relationship and the particular orders sought.

15.61 The application process differs between jurisdictions. In Victoria, for example, a person seeking a protection order fills out an information form, and the Court Registry uses this information to lodge a formal application for an order on the person’s behalf.[68] In other jurisdictions, it is up to the applicant or his or her legal representative to complete and file the application form.

15.62 Family violence legislation in each state and territory allows police officers to apply for protection orders on behalf of victims of family violence.[69] The prevalence of applications by police on behalf of victims varies across jurisdictions. For example, in Victoria, the majority of applications for protection orders are now made by the police.[70]

Interim orders

15.63 Interim protection orders are temporary orders made pending another court hearing, such as for final protection orders, or criminal proceedings. Often, an applicant will ask the court for interim orders so that the person has protection immediately after the first court hearing.

15.64 In South Australia, an application for a protection order is presumed to be an application for an interim order. The court conducts a preliminary hearing without notice to the person against whom the protection order is sought (the respondent). At this hearing, the court may make an interim protection order or otherwise deal with the matter.[71] In other jurisdictions, if interim orders are sought, the application will be listed before a magistrate as soon as possible after the application is filed, usually on the same day.

15.65 In all jurisdictions, a hearing for an interim protection order can occur in the absence of the respondent and without notifying the respondent.[72] In the hearing, the court will consider the application and any written or oral evidence provided by the applicant and decide whether or not to make an interim protection order.

15.66 All jurisdictions also make provision for protection orders to be made urgently in the absence of the respondent where the circumstances require it. In some jurisdictions, courts or other authorities may make urgent orders after hours by telephone, fax or email.[73] Generally, only police may apply for such orders.[74]

15.67 Interim orders are usually of short duration, pending a court hearing at which a court can hear from the respondent and make a final order.

Notifying the respondent

15.68 The respondent needs to be notified of the proceedings for the protection order. In most jurisdictions a court clerk or registrar will notify the respondent of the application and the time and place for the court hearing.[75]

Court hearings

15.69 When the respondent is notified of the application or the interim order, he or she will also be told when both the applicant and respondent will need to appear at a preliminary court hearing or ‘mention’. The main purpose of the mention is to determine whether the respondent will oppose or agree to the application for the protection order.

15.70 Because many magistrates courts deal with a high volume of applications for protection orders, mentions may be quite short. Dr Jane Wangmann, in her study of protection order proceedings in NSW Magistrates Courts, estimated that most mentions were dealt with in less than three minutes.[76] This however, is not necessarily reflective of practices across Australia.

15.71 There can be several different outcomes of a mention. A large number of protection orders are made by consent, when the applicant and respondent agree on the content of the order, which is then made by the court.[77] In such cases, the court is not required to make any findings as to whether the grounds for making the order are satisfied.[78] The court may also make an order by ‘consent without admissions’, where the respondent does not admit or agree to the allegations made in the application.[79]

15.72 If the applicant and respondent do not agree about the orders, the court will set a date for a contested hearing. The court may make an interim order for the person’s protection until the next court date, or continue an existing interim order. At the contested hearing, the court makes a decision whether or not to make a protection order based on evidence provided by the applicant and respondent, such as oral testimony from the parties and witnesses, police reports, medical reports, telephone records and photographs. Because protection order proceedings are civil proceedings, the magistrate will need to be satisfied of the facts ‘on the balance of probabilities’, not the higher criminal standard of ‘beyond reasonable doubt’.

15.73 If the respondent has been served or notified of the orders and proceedings but does not attend the mention or final hearing, the court may decide to hear the evidence and, if appropriate, make a protection order in his or her absence.[80]

15.74 In Western Australia and the ACT, a different procedure applies. In those jurisdictions, the respondent must return a signed copy of the interim order to the court, indicating whether he or she objects to the order.[81] If the respondent does not object, or fails to return the order, the interim order becomes a final order.[82] If the respondent does object, the registrar of the court will set a date for a contested hearing.[83]

Final orders

15.75 By making a final order, the court will replace any interim orders. Final orders must also be served on the respondent.[84] The order takes effect when it is made—if the respondent is present—or when the order is served on the respondent—if the respondent was not present at the hearing.[85] It is essential that the respondent knows that an order has been made because breach of a protection order by the respondent is a criminal offence in all jurisdictions.[86] Final orders may be in force for a period set out in the order, for a specified default period, for a specified maximum period or until the order is revoked.[87]

Variation and revocation

15.76 State and territory family violence legislation permits a court to vary or revoke a protection order.[88] Procedures to vary or revoke protection orders differ across jurisdictions. Legislation in some jurisdictions requires the respondent to seek leave of the court before making an application to vary or revoke a protection order, to ensure that applications to vary or revoke are not made for the purposes of harassing the victim of family violence.[89]

[59]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 9(1); Family Violence Protection Act 2008 (Vic) s 1; Domestic and Family Violence Protection Act 1989 (Qld) s 3A(1); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 5; Family Violence Act 2004 (Tas) s 3; Domestic Violence and Protection Orders Act 2008 (ACT) s 6; Domestic and Family Violence Act 2007 (NT) s 3(1). See further, Ch 3.

[60]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 35(1); Family Violence Protection Act 2008 (Vic) s 81(1); Domestic and Family Violence Protection Act 1989 (Qld) s 25(b); Restraining Orders Act 1997 (WA) s 13(1); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 5; Family Violence Act 2004 (Tas) s 16(2); Domestic Violence and Protection Orders Act 2008 (ACT) s 48(1); Domestic and Family Violence Act 2007 (NT) s 21(1)(a).

[61] See, eg, Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 35–36; Family Violence Protection Act 2008 (Vic) s 81(2); Domestic and Family Violence Protection Act 1989 (Qld) ss 22, 25(3); Restraining Orders Act 1997 (WA) s 13(2); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 12; Family Violence Act 2004 (Tas) s 16(3); Domestic Violence and Protection Orders Act 2008 (ACT) s 48(2); Domestic and Family Violence Act 2007 (NT) ss 22, 23. See Ch 11 for a discussion on the kinds of conditions that may be included in protection orders.

[62]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 91; Family Violence Protection Act 2008 (Vic) s 4; Domestic and Family Violence Protection Act 1989 (Qld) s 38; Restraining Orders Act 1997 (WA) s 25(3); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 3; Family Violence Act 2004 (Tas) s 5(1); Domestic Violence and Protection Orders Act 2008 (ACT) s 46; Domestic and Family Violence Act 2007 (NT) s 4.

[63] See, eg, Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 91; Family Violence Protection Act 2008 (Vic) ss 146–147; Children and Young People Act 2008 (ACT) s 459; Restraining Orders Act 1997 (WA) s 25(3)(a); Family Violence Act 2004 (Tas) s 31(8), (9).

[64] For example, in NSW a registrar may make interim orders by consent: Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 23.

[65]Family Violence Protection Act 2008 (Vic) s 24; Restraining Orders Act 1997 (WA) s 30A; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 18; Family Violence Act 2004 (Tas) s 14; Domestic and Family Violence Act 2007 (NT) s 41. Police powers to issue protection orders are discussed in Ch 9.

[66]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 48(2); Family Violence Protection Act 2008 (Vic) s 45; Domestic and Family Violence Protection Act 1989 (Qld) s 14; Restraining Orders Act 1997 (WA) s 25; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 20; Family Violence Act 2004 (Tas) s 15(2); Domestic Violence and Protection Orders Act 2008 (ACT) s 18; Domestic and Family Violence Act 2007 (NT) s 28.

[67] New South Wales, Application—Apprehended Domestic Violence Order; Magistrates’ Court of Victoria, Information for Application for an Intervention Order (2009) <www.magistratescourt.vic.gov.au> at 2 February 2010; Magistrates Court of Queensland, Protection Order Application <www.
communityservices.qld.gov.au/violenceprevention/legislation/dom-violence-orders.html> at 9 February 2010; Magistrates Court of Western Australia, Violence Restraining Order Application <www.magistratescourt.wa.gov.au/content/restraining.aspx> at 9 April 2010; Magistrates Court of Tasmania, Application for a Family Violence Order <www.magistratescourt.tas.gov.au/divisions
/family_violence/forms> at 29 March 2010; Magistrates Court of the Australian Capital Territory, Application for a Domestic Violence Order (2009) <www.courts.act.gov.au/magistrates> at 9 February 2010; Northern Territory Magistrates Courts, Application for Domestic Violence Order <www.nt.gov.au/justice/ntmc/forms_fees.shtml> at 29 March 2010.

[68] R Alexander, ‘Family Violence’ in Springvale Legal Centre (ed) Lawyers Practice Manual Victoria (2009) 208–1, [2.8.601]–[2.8.602].

[69]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 49; Family Violence Protection Act 2008 (Vic) s 45(a); Domestic and Family Violence Protection Act 1989 (Qld) s 14(1), pt 6; Restraining Orders Act 1997 (WA) s 25(1); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 18; Family Violence Act 2004 (Tas) s 15(2)(a); Domestic Violence and Protection Orders Act 2008 (ACT) s 18(2); Domestic and Family Violence Act 2007 (NT) s 28(1)(c).

[70] Victims Support Agency, Measuring Family Violence in Victoria (2009), 38.

[71]Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 21.

[72]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 22(3); Family Violence Protection Act 2008 (Vic) s 54; Domestic and Family Violence Protection Act 1989 (Qld) s 39D; Restraining Orders Act 1997 (WA) s 27; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 21; Family Violence Act 2004 (Tas) s 23(4); Domestic Violence and Protection Orders Act 2008 (ACT) s 33; Domestic and Family Violence Act 2007 (NT) s 35(2).

[73]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 26; Family Violence Protection Act 2008 (Vic) s 44; Domestic and Family Violence Protection Act 1989 (Qld) s 54; Restraining Orders Act 1997 (WA) s 19; Domestic Violence and Protection Orders Act 2008 (ACT) s 70.

[74]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 25(1); Family Violence Protection Act 2008 (Vic) s 44; Domestic and Family Violence Protection Act 1989 (Qld) s 54; Restraining Orders Act 1997 (WA) s 18; Domestic Violence and Protection Orders Act 2008 (ACT) s 68.

[75] See, eg, Family Violence Protection Act 2008 (Vic) s 48; Domestic and Family Violence Protection Act 1989 (Qld) s 47; Domestic Violence and Protection Orders Act 2008 (ACT) s 63; Domestic and Family Violence Act 2007 (NT) s 31.

[76] J Wangmann, ‘“She Said …” “He said …” : Cross Applications in NSW Apprehended Domestic Violence Order Proceedings’, Thesis, University of Sydney, 2009, 104. Wangmann notes that Hunter, in her research on protection order proceedings in the Victorian Magistrates’ Court, also found that most uncontested matters were considered within three minutes.

[77] Generally, only a court may make a final protection order by consent. An exception is s 38 of the Domestic and Family Violence Act 2007 (NT), which allows a court or clerk to make a final order.

[78]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 78(1); Family Violence Protection Act 2008 (Vic) s 78; Restraining Orders Act 1997 (WA) s 43; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 23; Domestic Violence and Protection Orders Act 2008 (ACT) s 43(2)(b); Domestic and Family Violence Act 2007 (NT) s 38.

[79]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 78(2); Family Violence Protection Act 2008 (Vic) s 78; Restraining Orders Act 1997 (WA) s 43; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 23(3); Family Violence Act 2004 (Tas) s 22(2); Domestic Violence and Protection Orders Act 2008 (ACT) s 43(2)(c); Domestic and Family Violence Act 2007 (NT) s 38.

[80]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 57; Family Violence Protection Act 2008 (Vic) s 61(2)(b); Domestic and Family Violence Protection Act 1989 (Qld) s 49; Restraining Orders Act 1997 (WA) s 42(2); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 23(2); Family Violence Act 2004 (Tas) s 31(7); Domestic and Family Violence Act 2007 (NT) s 32.

[81]Restraining Orders Act 1997 (WA) s 31; Domestic Violence and Protection Orders Act 2008 (ACT) s 36.

[82]Restraining Orders Act 1997 (WA) s 32; Domestic Violence and Protection Orders Act 2008 (ACT) s 36.

[83]Restraining Orders Act 1997 (WA) s 33; Domestic Violence and Protection Orders Act 2008 (ACT) s 36.

[84]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 77; Family Violence Protection Act 2008 (Vic) s 201; Domestic and Family Violence Protection Act 1989 (Qld) s 58; Restraining Orders Act 1997 (WA) s 44; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 23(5); Family Violence Act 2004 (Tas) s 25(1)(b); Domestic Violence and Protection Orders Act 2008 (ACT) s 64; Domestic and Family Violence Act 2007 (NT) ss 36, 40.

[85] See, eg, Domestic and Family Violence Protection Act 1989 (Qld) s 34; Restraining Orders Act 1997 (WA) s 16; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 23(4), (5); Family Violence Act 2004 (Tas) s 25.

[86]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14; Family Violence Protection Act 2008 (Vic) s 123; Domestic and Family Violence Protection Act 1989 (Qld) s 80; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31; Restraining Orders Act 1997 (WA) s 61; Family Violence Act 2004 (Tas) s 35; Domestic Violence and Protection Orders Act 2008 (ACT) s 90; Domestic and Family Violence Act 2007 (NT) s 120.

[87] See, eg, Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 79; Family Violence Protection Act 2008 (Vic) ss 97, 99; Domestic and Family Violence Protection Act 1989 (Qld) s 34A; Restraining Orders Act 1997 (WA) s 16(5); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 11; Family Violence Act 2004 (Tas) s 19; Domestic Violence and Protection Orders Act 2008 (ACT) s 55; Domestic and Family Violence Act 2007 (NT) s 27.

[88]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 72; Family Violence Protection Act 2008 (Vic) s 100; Domestic and Family Violence Protection Act 1989 (Qld) ss35–36; Restraining Orders Act 1997 (WA) s 45; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 26; Family Violence Act 2004 (Tas) s 20; Domestic Violence and Protection Orders Act 2008 (ACT) ss 58, 62; Domestic and Family Violence Act 2007 (NT) s 51.

[89]Family Violence Protection Act 2008 (Vic) s 109; Restraining Orders Act 1997 (WA) s 46; Family Violence Act 2004 (Tas) s 20(2); Domestic and Family Violence Act 2007 (NT) s 48.