What is a protection order and who do they cover?
- Protection orders are designed to help protect someone from family violence. The order covers anyone named in the order where there is reason to do this. This could include your children, your new partner, or family members involved in the situation.
- The person against whom the order is made can be a:
- Partner or spouse,
- A family member, like a sibling, parent, or cousin;
- A flatmate or someone you share your home with; and/or
- A carer or someone you have a close personal relationship with.
How do I get a protection order?
- To obtain a final protection order, you must show the Court that the other party has inflicted or is inflicting family violence against you or a child of your family or both. In addition, the court must be satisfied that making a final protection order is necessary for the protection of you, your child, or both.
- Violence can be physical, emotional, psychological or financial.
- There are two types of applications you can make:
- On notice- which means that the person should have an opportunity to respond to the allegations. This application is for circumstances where there is violence, but it could be:
- That the violence is historic and there is a new event that makes you concerned that the violence may “restart”; or
- because of several other factors like a misunderstanding of circumstances that has caused frustration between you and that person, and you have become concerned that they may act violently towards you.
- Without notice- which means that you want the Court to make an order without the person responding to the allegations. This is where there is a serious and imminent threat to your safety (and including any person whom you have a close relationship with that is also at risk because of the circumstances).
- On notice- which means that the person should have an opportunity to respond to the allegations. This application is for circumstances where there is violence, but it could be:
- Broadly, the process for obtaining a protection order is:
- making an application to the Court setting out the alleged family violence in the relationship. In some cases where the application is made on a without notice basis and the grounds are met, an “interim protection order” may be made, which takes effect immediately.
- the other person will have a set timeframe to respond to the application (including if there is an interim order in place). This is to set out their side of the story and provide any other information to the Court about the allegations made against them.
- If the person does not respond to the allegations, the Court will decide on a final order based on the information before the Court (so from your application).
- If the person does respond to the allegations, the next step would be to go to a hearing. After a hearing, the Court will decide if a final protection order is necessary in the circumstances.
- Once a final protection order is in place, the order is usually permanent.
- In some circumstances, either party to the application can ask for the order to be removed or changed, but the Court must be convinced that the order remains in the interest of those affected by the order.
Do I need to move out of my home if the person who the order is against lives with me?
- When you apply for a protection order, you can also apply for other orders for occupation (or tenancy) of your home and to keep your furniture. These orders are called “ancillary orders”.
- As with protection orders, the Court will look at whether the orders are needed in the circumstances.
- Factors the Court will consider are things like if there are children or vulnerable people involved and maintaining their usual environment, and if either person has another place to go that would provide better options for safety in the circumstances.
What if I call the Police about violence in my home?
- If you have an immediate concern about your safety, do not hesitate to call the Police.
- In some circumstances, the Police can issue a “Police Safety Order” which is a temporary order that requires one person to leave the property and stop contact with the other person for a set period (usually about 48 to 72 hours, but the Police have discretion on this timeframe). This order is sometimes referred to as a “PSO”.
- While a PSO is in place, we suggest that you contact a lawyer to discuss if a protection order would be appropriate in the circumstances.
What if I want the person to still see our children?
- If you have children together and still want your children to see their parent despite the protection order, you may need to apply for a “Parenting Order”. The parenting order process is like the protection order process.
- A lawyer for the children is also usually appointed to help the Court navigate what is best for the children involved.
- The application for a parenting order and application for a protection order usually run alongside one another so generally the applications are made at the same time.
What if I’m still married to the person that I have a protection order against?
- In most cases, to end your marriage, you need to be separated for two years.
- However, “Ashley’s Bill” was recently passed allowing people with a final protection order in place to apply for a divorce without waiting the usual two year period.
- If you would like to know more about divorce, read our article on “How to get a divorce”.
Next steps
If you would like to discuss applying for a protection order or a parenting order, contact me or another member of Lewis Lawyers’ Dispute Resolution team.
