Although being served with an AVO or Protection Order is not the same as being charged with a criminal offence, breaching an AVO can result in criminal charges being laid and, if you plead guilty or are found guilty of a breach, a conviction is likely to be recorded.
A Family Violence Order is a court order that prevents someone from engaging in, or getting others to engage in on their behalf, family violence towards another family member.
The object and purpose of Family Violence Orders are to prevent and reduce family violence, to ensure the safety and protection of people (including children) who fear, experience or witness family violence, and to encourage perpetrators of family violence to be accountable for their conduct. These objects are contained in the Family Violence Act 2016 (ACT) [the “Act”] at section 6.
Family Violence is defined in the Act. It is not just physical violence. It has a broad definition that encapsulates a number of different things including any of the following:
A person can apply for a Family Violence Order if they have been affected by family violence by the person whom they are seeking to take out an order against.
A person can also apply to have their child, or children, added to the order. However, if the children are over the age of 18, they are required to make an application for their own order.
A person can only apply for a Family Violence Order if the person they are seeking to take the order out against is a family member. The Act defines a family member as:
An application for a protection order against someone who is not a family member is called a Personal Protection Order or, if occurring at work, a Workplace Protection Order.
A person will need to complete an application and file it at the ACT Magistrates Court Registry. A person applying for an order will need to fill out the following forms:
These forms can be downloaded from the ACT Magistrates Court website.
Once the relevant forms have been filed with the Registry, a copy of the application will be served on the Respondent (the person whom the order is against) by Police. The application will then be listed for a Registrar’s Conference where the parties will be given an opportunity to discuss their options with a Registrar and ascertain whether there is any way for the matter to resolve by consent.
If you are served with an application for a Family Violence Order you should seek legal advice immediately.
It is very important to understand whether you have also been served with an Interim Order. That is, an Order with a number of conditions which may prevent you from acting, communicating or seeing the Applicant. It is important that you read these conditions carefully as, any breaches can amount to a criminal offence, and will be dealt with in the criminal jurisdiction of the ACT Magistrates Court.
It is also important to understand what upcoming court dates you are required to attend and what will happen on each of those dates.
If you fail to attend a court date, after you have been served with a copy of the Order, a Final Order may be made in your absence and you will not have an opportunity to contest the application.
Once an application is filed in court, the application will go before a Registrar or Magistrate in the ACT Magistrates Court. It is common for a person to engage a legal representative and have a lawyer appear for, and with, them at an Interim hearing. An Interim hearing is carried out ex parte, this means that the Respondent, the person whom someone is seeking to take out an order against, is not present before the court and should not initially be aware of the application at the time it is being made.
When the Applicant is in court, the Registrar or Magistrate will then determine whether it is appropriate for an Interim Order to be made. An interim Order is a temporary order that remains in place for the duration of the proceedings, until a decision is made about whether or not to make a Final Order.
The Registrar will read a copy of the Applicant’s application, and the reasons why a person says they need a family violence order. It is also common for a person to give oral evidence in the witness box about why they are seeking certain conditions or prohibitions on an order.
After reading the application, and hearing any oral evidence, the Registrar will then determine whether it is appropriate for an Interim Order to be made.
If the Registrar has determined that it is appropriate for an Interim Order to be made, the police will then locate the Respondent and personally serve a copy of the application and Interim Order (if made) on them.
If an Interim Order is made, it will be in place until it is determined whether it is appropriate to make a Final Order.
It is very important to note that a breach of an Interim Order is a criminal offence. Any breaches can be reported to police and a Respondent may be charged, just as if it were alleged that they had breached a final Order.
Once a person has lodged their application for an FVO, and appeared at an Interim hearing, the Registrar will adjourn the matter for a Registrar’s Conference.
A Registrar’s Conference is an informal meeting at the ACT Magistrates Court. An applicant will appear in a conference room with a Registrar. A Respondent is also required to attend, and will appear in a different conference room or area at the other end of the courthouse. It is organised with a view to ensuring that Applicants and Respondents do not interact, or see one another.
The purpose of a Registrar’s Conference is to see whether the application can resolve by agreement. At the Conference, a Registrar can only make orders if they are by the consent of both the Applicant and Respondent. There are a number of things that can be considered at a Conference. Including:
IMPORTANT: If a Final Order is entered into by the consent of the Respondent it can only be made for a maximum period of 2 years (section 35 the Act).
IMPORTANT: The duration of a Final Order only starts to commence on the date of the Final Order being made. For example, if a Respondent is served with an Interim Order on 1 January 2000 and the Respondent consents to a Final Order, for a period of 2 years, at a Registrar’s Conference on 1 June 2000 the date of commencement is 1 June 2000, not 1 January 2000.
IMPORTANT: It is important to note that if a Respondent is considering consenting to a Final Order, or entering into Undertakings, this can be on a ‘without admissions’ basis. This means that the Respondent is not agreeing or accepting any of the allegations or contents of the application as being truthful. It simply means that they are willing to consent to a Final Order, or Undertakings.
If there is no agreement by the Applicant and Respondent then the matter will be adjourned by the Registrar for a Pre-Hearing mention. The Pre-Hearing mention will generally be about 8 weeks after the Registrar’s Conference.
Undertakings are an informal document where a Respondent makes a promise to the other party to comply with the conditions included in the Undertakings. A copy of the Undertakings are placed in the court file. Undertakings are not legally enforceable, and any alleged breach of undertakings is not a criminal offence. The police do not have any powers to enforce any alleged breaches of undertakings.
If a person fails to comply with undertakings, after they have been placed on the court file, an applicant will need to begin the process of applying for a Family Violence Order again. However, any new application can rely on evidence of an alleged breach of undertakings to strengthen their application for a new FVO.
A Pre-Hearing mention is when both parties (the Applicant and Respondent) are required to attend the Magistrates Court before the Registrar. Both parties, and their legal representatives (if they are represented), appear in court before the Registrar.
At that time, the Registrar will ask the Applicant and Respondent whether the application is still proceeding, and whether the application remains opposed by the Respondent. If the application is still contested, then the Registrar will list the application for a Final Hearing. This final hearing will be before a Magistrate.
The Registrar will also ask the parties how many witnesses they each intend to call, and provide an estimate of how long the hearing is expected to take (e.g. 2 hours or 1 day).
At the Pre-Hearing mention, the parties will also receive a document that details a number of ‘Directions’. These Directions often include a timetable for the filing and service of various documents that both the Applicant and Respondent intend to rely on as evidence at hearing. Documents include things such as:
If parties have not been able to reach an agreement throughout the course of the proceedings, the matter will proceed to a ‘Final Hearing’ before a Magistrate.
At a final hearing, the parties are required to attend in person, with all evidence they intend to rely on. This includes any witnesses that are expected to give evidence.
The Magistrate will likely have before them a copy of the application, filed by the Applicant, and any evidence filed by both the Applicant and Respondent such as the completed timelines.
Usually, the Applicant will then be required to give oral evidence in the witness box. This evidence is generally focussed on why the Applicant feels the need for a Final Order.
The Respondent will then get an opportunity to cross-examine the Applicant. If the Respondent is self-represented they are not permitted to cross-examine an Applicant personally. A Deputy Registrar is generally appointed and they are provided a list of questions by the Respondent, who the Deputy Registrar, then in turn asks the Applicant.
If the Respondent is legally represented, the Respondent’s lawyer can ask the Applicant questions in cross-examination.
After the Applicant has given their evidence, including calling any other witnesses in support of their Application, the Respondent is then called to give evidence (should they choose).
After the Respondent, and any witnesses for the Respondent, have given their evidence, the parties are then given an opportunity to make submissions in support of why, or why not, a Final Order should be made.
A Magistrate is required to consider a number of things in deciding whether it is appropriate to make a Final Order, they are contained in section 14 of the Act. Those things include:
A Magistrate then may make a Final Order if they are satisfied that either:
A Final Order can be made for a maximum period of 24months/2 years. However, if the court is satisfied that there are special or exceptional circumstances that justify a longer period, the court can make a Final Order for a longer period.
It is, however, important to note that if a Final Order is consented to by a Respondent it can only be made for a maximum period of 24 months/2 years.
What happens if you go to court and the other party does not appear? The Court has the power to adjourn, dismiss, or make Final Orders. It depends on a number of things as to what happens. Some possible outcomes are as follows:
Failure to appear by Applicant (section 53)
If an Applicant in an application for a Final Order is not before the court when the application is listed, the Court must do one (1) of the following:
Failure to appear by Respondent (section 54)
If a Respondent to an application is not before the court, the Court must do one (1) of the following:
It is important to note that this section does not apply if a Respondent has not been served with a copy of an application for an order. From time to time, the police may have difficulty serving a copy of the application before the first return date for the application. In those circumstances, the court will adjourn the return of the application to a future date in the hope that a Respondent will be served in the near future.
Failure to appear by both Applicant and Respondent (s 54A)
If neither the Applicant or Respondent appear when an application is before the court, whether it be a Registrar’s Conference, Pre-Hearing mention, or Final Hearing, the Court may order that the application for an Order be dismissed.
Applications for Family Violence Orders are dealt with in the civil jurisdiction of the Magistrates Court. However, it is very important to note that breaches of both Interim and Final Orders are criminal offences and are dealt with in the criminal jurisdiction.
An offence of breaching a Family Violence Order is contained at section 43 of the Family Violence Act – ‘Contravention of Family Violence Order’ and it carries a maximum penalty of 500 penalty units, 5 years imprisonment, or both.
Final Family Violence Orders are recognised across all states and territories in Australia. This also applies to similar Orders in other jurisdictions. For example, Apprehended Domestic Violence Orders (AVOs) in NSW are legally enforceable in the ACT. This means that breaches, or contraventions, of a Family Violence Order can be criminally prosecuted in any jurisdiction in Australia.
A Protected Person can apply to extend a Final Order when the Order is due to expire. The Protected Person is required to file an application with the ACT Magistrates Court and must provide details of the basis of the extension application. Similar to the initial application process, the Protected Person and Respondent are afforded the opportunity to attempt to resolve the application, by consent, through a Registrar’s Conference. If there is no agreement between the parties, the application proceeds through the same process (as detailed above) to contest the extension of the order.
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