In circumstances of violence, harassment, intimidation or the threat of same, it may be necessary to have a family violence protection order made. These orders seek to protect a person from the risk of harm or violence by limiting the behaviour of the person who poses the threat. Unlike family law which is federal jurisdiction, family violence protection orders are derived from State based jurisdiction. These orders have different names in different States, namely:

• New South Wales — apprehended violence orders (AVO);

• Victoria — family violence intervention orders (FV IVO);

• Queensland — protection orders;

• Western Australia violence restraining orders (VRO);

• South Australia — intervention orders (IVO);

• Northern Territory — domestic violence orders (DVO)

• ACT — domestic violence orders (DVO); and

• Tasmania — family violence ordes (FVO).

In all jurisdictions the order can extend to cover other significant persons including children and relatives of the protected person. A protection order of one Australian State or Territory will be recognised in any other Australian State or Territory.

Because a protection order is made in response to a risk of harm, such orders will often need to be made in urgent circumstances. Courts can grant interim orders on an ex parte basis, without giving notice to the defendant. Interim orders can be applied for by telephone 24 hours a day, 7 days a week.

All family law enquiries can be made via the National Enquiry Centre (NEC) on 1300 352 000. The NEC staff cannot provide legal advice.

The Family Relationships Advice Line on 1800 050 321 is a national advice and referral service helping families with separation or relationship issues and complements the Family Relationships Centres.

If an interim order is made, final proceedings will generally be adjourned, allowing time for the defendant to be served, and allowing time for both sides to prepare their case.

The issuing of a family violence protection order in itself will not result in a criminal conviction for the person who is considered a threat under the order.

In New South Wales, Victoria, Western Australia, and South Australia, such orders can be made on a “without admissions” basis. This means that the defendant consents to the order without admitting that they have done anything wrong. (In Queensland, while protection orders can be made by consent, it is debatable whether or not an order can be made on a “without admissions” basis. Whether or not the power to make such an order is available, such orders are regularly made). The defendant will agree to abide by the terms of the order, generally to keep the peace. The majority of protection orders are made on a consent basis.

However, if a person breaches an order, and they are subsequently charged with and convicted of that breach, they will then have a criminal conviction.

The police can play a pivotal role in the granting of protection orders especially on an urgent interim basis. They can investigate claims of family violence, apply for protection orders directly, arrest and also charge defendants upon the breach of a protection order. For example, in Victoria more than 70% of applications for family violence protection orders are made by police. In many cases, a police officer will be the applicant for the protection order. In those cases, the police will present the application to the court and the person in need of protection will not need separate representation. However, in some cases the police will decline to apply for the protection order. In those cases, the person seeking the order will be the applicant. Although legal representation is not strictly required it is strongly advisable.

The existence of a family violence protection order will be relevant for the court when deciding what is in the best interests of a child. The Court should be provided with a copy of any existing orders. Section 65AA of the Family Law Act 1975 provides that the child’s best interests are of paramount consideration when making parenting orders. Pursuant to s 60CC(3)(k) the existence of a family violence order is a relevant consideration for the court when determining the best interests of a child where the order was a final order or where the making of the order was contested by a person. On 7 December 2011 the Commonwealth Parliament passed the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 . One of the amending provisions of the Act provides that a family violence order will be a relevant consideration for the court when determining the best interests of a child regardless of whether or not the order was a final order or was contested, and any “relevant inference” can be drawn from the order, taking into account such factors as:

• the nature of the order;

• the circumstances in which the order was made;

• any evidence admitted in proceedings for the order;

• any finding by the court in those proceedings; and

• any other relevant matter.

Sometimes the courts will be asked to make a parenting order that is inconsistent with a protection order. Generally, such a parenting order will be limited to allow contact between the parties only to the extent that it is necessary to do such things as participate in family counselling or dispute resolution, or to facilitate a parent spending time with a child: ss 68P , 68Q of the Family Law Act 1975 (Cth). Care should be given to ensure that the inconsistent parenting order does not inadvertently compromise the safety of the protected party/ies.

Essentially under 68Q of the Family Law Act the family law Order or injunction overrides any existing family violence order to the extent that the family law Order or injunction is inconsistent. Care should be given to ensure that the inconsistent parenting order does not inadvertently compromise the safety of the protected party/ies.