The following table sets out a range of issues for consideration by judicial officers in protection order application proceedings. It is not an exhaustive list. There may be other issues requiring specific attention depending on the facts and circumstances of the particular case.
Issue | Consider |
|---|---|
Safety of individuals | Who requires protection – applicant/victim, children, others (including extended family) |
Who is/not in attendance | |
Protection necessary/available in courtroom and court precinct | |
Appropriateness of remote witness facilities | |
Risk | Nature and extent of domestic and family violence behaviours alleged |
Respondent/perpetrator’s use of/access to/location of/licences for firearms or other weapons | |
Living and work/school/study arrangements of all affected parties | |
Risk factors – general, and specific to particular case incl parties’ vulnerabilities (eg health, disability, cultural and linguistic) | |
Need for assessment of risk of future domestic and family violence | |
Consent/disclosure | Whether applicant/victim’s capacity to consent or disclose may be affected |
Consent in the context of applicant/victim agreeing to consent orders (see below) | |
Consent in the context of applicant/victim agreeing to withdraw application (see below) | |
Existing orders – Children/parenting | Family law or child protection orders – availability of/access to copies, specific conditions |
Whether child contact with respondent/perpetrator is safe for child, applicant/victim | |
Existing orders – Respondent/perpetrator | Bail or sentencing orders – availability of/access to copies, specific conditions |
Availability of/access to police records | |
Practical issues affecting ongoing parenting & family law matters | Proximate timing of listed Family Court/Federal Circuit Court hearing re parenting matters and whether safe and appropriate to defer protection order application proceedings pending outcome of hearing |
Where no current application for parenting orders, whether naming children as protected parties on protection order will unduly impact on outcome of any subsequent parenting proceedings | |
How parties will communicate re safe changeover arrangements, joint parenting decisions, ongoing joint financial/business and family law matters if one or both are self-represented | |
Procedure | Matters affecting fair hearing – conduct of proceedings, availability and use of remote witness facilities, legal representation, interpreters/translators, support person in court, referral to support services |
Need for/length of adjournment/s – timely decision making | |
Protection order conditions | Naming protected parties – applicant/victim, children, others |
Tailoring conditions to reflect particular circumstances of the case | |
Prohibition of certain domestic and family violence behaviours against protected parties | |
Prohibition on respondent/perpetrator from contacting or being within a certain distance of protected parties or their residence, workplace, or other location/s | |
Prohibition on respondent/perpetrator’s possession/use of firearms or other weapons | |
Prohibition on respondent/perpetrator from causing another person to engage in conduct prohibited by the order | |
Exclusion of respondent/perpetrator from protected person’s residence | |
If child contact with respondent/perpetrator is not safe for child or other protected parties – consider no contact or alternative safe contact arrangements (eg contact centre) | |
If family law order inconsistent with proposed protection order – vary family law order to ensure consistency (s 68R Family Law Act 1975 (Cth)) | |
If no family law order and child contact with respondent/perpetrator is safe for child and other protected parties – consider specific conditions dealing with contact arrangements (and negotiation of) consistent with protection order | |
If child protection order – consider whether consistent/need for consistency | |
If bail or sentencing orders – consider whether consistent/need for consistency | |
Duration – proportionate to risk and protected parties’ need for protection, observe any legislative prescriptions | |
Cross application – Mutual protection orders | Whether the cross application by the respondent/perpetrator may be intended to further harass, control or abuse the applicant/victim |
Whether the risk of further domestic and family violence to each party is equivalent or one is at greater risk than the other | |
Whether the mutual orders may have the effect of minimising the domestic and family violence experienced by one party | |
Protection orders by consent | Whether applicant/victim’s agreement to accept consent order may not be voluntary |
Whether order made with or without admission of matters of fact | |
Possible effects of consent orders without admission of matters of fact | |
Undertakings – single/mutual | Whether protection order a more appropriate response |
Whether applicant/victim’s agreement to accept undertaking may not be voluntary | |
Recording and notifying the parties of the limitations of undertaking: unenforceable; breach not a criminal offence | |
Withdrawal of application | Whether applicant/victim’s withdrawal/agreement to withdraw may not be voluntary |
Explanation of protection orders | Protected parties – how the order protects, specific conditions relating to children/contact arrangements, rights in the event of breach, query personal safety plans, available victim support programs |
Respondent/perpetrator – consequences of breach, denounce domestic and family violence, encourage compliance and participation in any behavioural change programs, recommend seeking legal advice |
The following table sets out a range of issues for consideration by judicial officers in protection order application proceedings. It is not an exhaustive list. There may be other issues requiring specific attention depending on the facts and circumstances of the particular case.
Issue | Consider |
|---|---|
Safety of individuals | Who requires protection – applicant/victim, children, others (including extended family) |
Who is/not in attendance | |
Protection necessary/available in courtroom and court precinct | |
Appropriateness of remote witness facilities | |
Risk | Nature and extent of domestic and family violence behaviours alleged |
Respondent/perpetrator’s use of/access to/location of/licences for firearms or other weapons | |
Living and work/school/study arrangements of all affected parties | |
Risk factors – general, and specific to particular case incl parties’ vulnerabilities (eg health, disability, cultural and linguistic) | |
Need for assessment of risk of future domestic and family violence | |
Consent/disclosure | Whether applicant/victim’s capacity to consent or disclose may be affected |
Consent in the context of applicant/victim agreeing to consent orders (see below) | |
Consent in the context of applicant/victim agreeing to withdraw application (see below) | |
Existing orders – Children/parenting | Family law or child protection orders – availability of/access to copies, specific conditions |
Whether child contact with respondent/perpetrator is safe for child, applicant/victim | |
Existing orders – Respondent/perpetrator | Bail or sentencing orders – availability of/access to copies, specific conditions |
Availability of/access to police records | |
Practical issues affecting ongoing parenting & family law matters | Proximate timing of listed Family Court/Federal Circuit Court hearing re parenting matters and whether safe and appropriate to defer protection order application proceedings pending outcome of hearing |
Where no current application for parenting orders, whether naming children as protected parties on protection order will unduly impact on outcome of any subsequent parenting proceedings | |
How parties will communicate re safe changeover arrangements, joint parenting decisions, ongoing joint financial/business and family law matters if one or both are self-represented | |
Procedure | Matters affecting fair hearing – conduct of proceedings, availability and use of remote witness facilities, legal representation, interpreters/translators, support person in court, referral to support services |
Need for/length of adjournment/s – timely decision making | |
Protection order conditions | Naming protected parties – applicant/victim, children, others |
Tailoring conditions to reflect particular circumstances of the case | |
Prohibition of certain domestic and family violence behaviours against protected parties | |
Prohibition on respondent/perpetrator from contacting or being within a certain distance of protected parties or their residence, workplace, or other location/s | |
Prohibition on respondent/perpetrator’s possession/use of firearms or other weapons | |
Prohibition on respondent/perpetrator from causing another person to engage in conduct prohibited by the order | |
Exclusion of respondent/perpetrator from protected person’s residence | |
If child contact with respondent/perpetrator is not safe for child or other protected parties – consider no contact or alternative safe contact arrangements (eg contact centre) | |
If family law order inconsistent with proposed protection order – vary family law order to ensure consistency (s 68R Family Law Act 1975 (Cth)) | |
If no family law order and child contact with respondent/perpetrator is safe for child and other protected parties – consider specific conditions dealing with contact arrangements (and negotiation of) consistent with protection order | |
If child protection order – consider whether consistent/need for consistency | |
If bail or sentencing orders – consider whether consistent/need for consistency | |
Duration – proportionate to risk and protected parties’ need for protection, observe any legislative prescriptions | |
Cross application – Mutual protection orders | Whether the cross application by the respondent/perpetrator may be intended to further harass, control or abuse the applicant/victim |
Whether the risk of further domestic and family violence to each party is equivalent or one is at greater risk than the other | |
Whether the mutual orders may have the effect of minimising the domestic and family violence experienced by one party | |
Protection orders by consent | Whether applicant/victim’s agreement to accept consent order may not be voluntary |
Whether order made with or without admission of matters of fact | |
Possible effects of consent orders without admission of matters of fact | |
Undertakings – single/mutual | Whether protection order a more appropriate response |
Whether applicant/victim’s agreement to accept undertaking may not be voluntary | |
Recording and notifying the parties of the limitations of undertaking: unenforceable; breach not a criminal offence | |
Withdrawal of application | Whether applicant/victim’s withdrawal/agreement to withdraw may not be voluntary |
Explanation of protection orders | Protected parties – how the order protects, specific conditions relating to children/contact arrangements, rights in the event of breach, query personal safety plans, available victim support programs |
Respondent/perpetrator – consequences of breach, denounce domestic and family violence, encourage compliance and participation in any behavioural change programs, recommend seeking legal advice |