Family Violence Orders
From 1 May 2017 the processes relating to Protection Orders changed in the ACT. There are now three forms of Order available depending on the relationship between the person applying for the Order (the protected person, or applicant) and the other party (the respondent). The types of Order and to whom they apply are:
- Family Violence Order (FVO) – these apply where there is, or has been, a family, domestic or intimate relationship between the protected person and the respondent.
- Workplace Protection Order (WPO) – these apply when a business or an employee of a business is the protected person. These are applied for by an employer to protect their workplace and/or employees from conduct that relates to that workplace.
- Personal Protection Order (PPO) – these apply to all other cases; when there is neither a family nor workplace relationship between the protected person and the respondent.
What is Family Violence?
Family violence is very broadly defined and includes not only physical and sexual violence but also emotional or psychological abuse, threatening behaviour, economic abuse, stalking, sexually coercive behaviour, damage to property or harm to a pet. The definition of ‘family violence’ is contained in section 8 of the Family Violence Act 2016 which states that family violence is:-
- Any of the following behaviour by a person in relation to a family member of the person:-
- Physical violence or abuse;
- Sexual violence or abuse;
- Emotional or psychological abuse;
- Economic abuse;
- Threatening behaviour;
- Coercion or any other behaviour that—
- Controls or dominates the family member; and
- Causes the family memberto feel fear for the safety or wellbeing of the family member or another person; or
- Behaviour that causes a child to hear, witness or otherwise be exposed to behaviour mentioned in paragraph (a), or the effects of the behaviour.
Section 8(2) of the Family Violence Act 2016 goes on to state that ‘family violence’ by a person in relation to a family member of the person also includes the following:-
- Sexually coercive behaviour;
- Damaging property;
- Harming an animal;
- Deprivation of liberty.
‘Economic abuse’ is defined in section 8(3) of the Family Violence Act 2016 as behaviour by a person that is coercive, deceptive or that unreasonably controls the family member without the family member’s consent including by the person’s exploitation of power imbalances between the person and the family member —
- In a way that takes away the financial independence or control the family member would have but for the behaviour; or
- If the family member is wholly or predominantly dependent on the person for financial support to meet the living expenses of the family member or the family member’s child—by withholding the financial support.
‘Emotional or psychological abuse’ is also defined in section 8(3) of the Family Violence Act 2016 as behaviour by a person that torments, intimidates, harasses or is offensive to the family member including by the person’s exploitation of power imbalances between the person and the family member.
What Actions Might Constitute Family Violence?
Examples of actions that might constitute family violence include:
- A child overhearing threats being made in another room of the house.
- A person stopping a family member from having access to money to meet their usual living expenses.
- A person stopping a family member from having contact with their friends or family.
- A person threatening to self-harm as a way of intimidating the family member.
Basis for Family Violence Orders and Protection Orders
In the case of Family Violence Orders the threshold is quite low, and the Court will usually grant a Family Violence Order if satisfied there has been any family violence in the past.
In the case of Protection Orders (workplace or personal) an Order can only be made when the Court is satisfied that there has been relevant conduct in the past and, there is a likelihood that such conduct would occur in the next 12 months unless a Protection Order is made. The conduct relevant to the making of a Protection Order includes physical/sexual violence or abuse, threatening behaviour, stalking, damage to property and harassing intimating or offensive behaviour.
Restrictions Imposed by Orders
Family Violence Orders and Protection Orders can impose a number of restrictions. These typically include conditions that:-
- Prevent contact with the protected person and people closely associated with them (often their children);
- Prevent communication with the protected person or provide that such communication can only occur in particular circumstances (for example, in the presence of a third person or in writing);
- Prevent the respondent from attending specified locations;
- Prevent the respondent from engaging in personal or family violence;
- Prevent other people from doing any of the above things on behalf of the respondent; or
- Require the return of personal property to the protected person.
In each case the Family Violence Order or Protection Order makes it a criminal offence to contravene the restrictions. This can have far reaching consequences particularly where the parties are going through a separation, or where the Order prevents contact with children. Cases that include restrictions that affect your separation or children may require a combination of criminal law and family law advice to resolve.
What Should I Do If I Receive an Order?
If you are served with a Family Violence Order or Protection Order then you should contact a lawyer as soon as possible. You need to seek advice to ensure that an objection form is lodged. If the objection is not lodged in time you risk the Order being in place for up to two years without having an opportunity to respond to the allegations. You will also need to obtain advice about whether an interim Order has been made and, if so, what restrictions it imposes.
What Should I do if I Have Concerns About My Safety?
If you have immediate concerns about your safety or the safety of your children you should call the police. Once an immediate threat of violence is reported to police you should make an appointment with a lawyer to discuss preparing an application for a Family Violence Order or Protection Order. A lawyer will assist you to identify the correct Order for your circumstances and advise you of the restrictions that should be sought, from the Court, against the other party.
Contravening an Order
The restrictions imposed by a Family Violence Order or Protection Order are enforceable by the Police. If you contravene the conditions of an Order you may be arrested and charged with a criminal offence. As any contravention is a breach of a Court Order, contraventions are treated especially seriously. You will need legal advice when you attend Court as it is likely that police will oppose bail. The offences of contravening a Family Violence Order or Protections Order carry maximum penalties of 5 years’ imprisonment and/or a fine of $7,500. Orders will also affect your right to hold a firearms licence (see below).
Family Violence Orders and Related Criminal Charges
If there are related criminal charges involving domestic or family violence, a Family Violence Order may be applied for by police. Whether the protected person or police apply for a Family Violence Order if there are related criminal charges, the hearing for the Family Violence Order will not be determined until after the criminal charges are finalised. In these circumstances, obtaining criminal law advice about the related charges and the impact they have upon the Family Violence Order proceedings is important. The result of the Family Violence Order proceeding may impose ongoing restrictions beyond any punishment for the criminal charge.
If you are the holder of a firearms licence any Family Violence Order or Protection Order will affect that licence. The license is suspended and any firearms will be seized by police for the duration of any Interim Order. If a Final Order is made you will become unable to hold a firearms licence and your guns will have to be sold or surrendered.
Which Court Will Hear Your Matter?
Proceedings for all of these Orders are commenced in the ACT Magistrates Court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
WHERE TO NEXT?
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.