In the ACT, there are 3 types of protection orders. They are:
- Family Violence Orders (FVO)
- Personal Protection Orders (PPO)
- Workplace Protection Orders (WPO)
Although each order is designed to protect different people/entities, and protect against slightly different types of conduct, they all follow the same procedural pathway from the start of the matter to the end.
First, the applicant files an application for a final order. This will almost always involve a related application for an interim order, in order to gain protection in the interim while the application for a final order progresses through court. The respondent to the application then needs to be served with a copy of the application by police, and the interim order if it is granted. Once the interim order is served on the respondent, they are required to comply with the conditions of that order or they risk committing a criminal offence.
Second, a Registrar’s Conference is held in the court building. Both parties are required to attend court for this conference. It is an opportunity for parties to effectively mediate, to see if the matter can be resolved without progressing further.
Third, if there is no resolution at the Registrar’s Conference, the next step is Directions. The Court will direct the applicant to file a timeline of relevant events by a particular date, and direct the respondent to file a response (Notice of Grounds of Defence) to the applicant’s timeline. It will also set down dates for the filing of subpoenas, and other relevant documents. At Directions, the matter will be listed for final hearing before a Magistrate.
The ultimate tests for the Magistrate to consider at a final hearing are quite simple. In FVO hearings, the question is whether the applicant has satisfied the Magistrate on the balance of probabilities that either:
- the affected person has reasonable grounds to fear family violence by the respondent; or
- the respondent has used family violence against the affected person.
In PPO and WPO hearings, the question is whether the applicant has satisfied the Magistrate on the balance of probabilities of both of the following:
- the respondent has used personal violence against the applicant / in relation to the workplace; and
- the respondent may engage in personal violence in relation to the applicant / workplace during the time the order is proposed to operate if the order is not made.
In theory, the difference in the two tests means it is easier to obtain a final FVO than a final PPO or WPO. This is because, to obtain a PPO or WPO, the applicant must establish not only that the respondent has actually used violence against the applicant, but also that there is a risk that violence will occur again if an order is not made. To obtain a final FVO, it is sufficient to establish that the applicant has reasonable grounds to fear violence from the respondent; i.e. actual violence does not necessarily need to be established.
The onus is on the applicant to satisfy the Court that an order should be made. To do so, it will often be necessary for the applicant to give oral evidence under oath or affirmation. Usually, the applicant will choose to do this from a remote witness room rather than live in the court room. When this occurs, the applicant will appear on a screen in the court room. The applicant may also call evidence from other witnesses, and adduce other forms of evidence such as documentary or video / audio evidence.
The respondent is then given the opportunity to challenge the applicant’s evidence, as well as to adduce evidence of their own that might contradict or contextualise the applicant’s evidence. It is important to keep in mind that, in FVO hearings, the respondent is prohibited from personally cross-examining the applicant. In such circumstances, if the respondent is not legally represented, a Deputy Registrar will be assigned to ask questions of the applicant that the respondent has prepared.
Once all evidence has been called, parties then have the opportunity to make oral submissions to the Magistrate, which will then decide if the applicant has satisfied them of the relevant test. It is ultimately the Magistrates decision as to whether a final order is made, and if so, what the conditions of the order are.
If a final order is made, the standard period for an FVO is two years, and for a PPO or WPO it is one year.
Should you or someone you know receive or require a protection order, it is recommended you receive legal advice from an experienced lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney, NSW (02 9696 1361), Canberra (02 5104 9640), Perth (08 6255 6909) or Northern NSW (02 5552 1902) to make an appointment to speak to one of our lawyers.
