A Personal Protection Order (PPO) is a court order that prevents a person from engaging in, or causing someone else to engage in on their behalf, personal violence towards another person.
Personal Violence is defined in the Personal Violence Act 2016 (ACT) [the “Act”]. It is not just physical violence. The legislation provides for a broad definition that includes a number of different things. Personal violence can include any of the following:
A person can apply for a Personal Protection Order if they have been affected by Personal Violence by the person 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 child, or children, are over 18 years of age, they are required to make an application for their own order (section 13A Personal Violence Act 2016 (ACT)).
Yes, they are two different types of orders. Both orders have very similar processes, procedures and protections, however, the most significant difference is who can be a Protected Person and who can be the Respondent.
A Family Violence Order is only made in relation to persons who are family members, or have an intimate relationship. In all other circumstances, a Personal Protection Order is the appropriate Order. An example might be a neighbour, colleague or acquaintance.
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 made 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 to see whether there is any way for the matter to resolve by consent.
If you are served with an application for a Personal Protection 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 preventing you from acting, communicating, or seeing the Protected Person. It is important that you read the conditions very carefully as any breaches of the Interim Order can result in a criminal offence, where you can be required to appear before the ACT Magistrates Court.
It is also important to understand what the process is, what the upcoming court dates are, when you are required to attend and what is required of you both before, and on, those court dates.
IMPORTANT: 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 for a personal protection order, the application will go before a Registrar in the 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.
When the Applicant is in court, the Registrar 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 Personal Protection 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 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. However, importantly, an Interim Order can only be extended for a maximum period of 12 months. This means that if a determination is not made in relation to a Final Order after 12 months, that the Interim Order cannot be extended. It is only in very rare circumstances that a matter will not be finalised within 12 months of making an Interim Order, but it can happen.
It is also very important to note that a breach of an Interim Order is a serious 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. The offence is punishable by a maximum penalty of up to 5 years imprisonment.
Once a person has lodged their application for a PPO, 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 or mediation 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, 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 be resolved 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:
If a Final Order is entered into by the consent of the Respondent it can only be made for a maximum period of 1 year (section 21 of the Act).
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.
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 between 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 court to comply with the conditions included in the Undertakings. 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. A copy of the Undertakings will be placed on the court file.
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 will likely be strengthened on the basis that a respondent has previously failed to comply with the agreed undertakings.
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 at a later time (often within 2 months). 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.
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 considerations pursuant to section 11 and section 26 of the Act as to whether it is appropriate to make a Final Order. Those considerations are as follows:
This includes:
A Final Order may be made if a Magistrate is satisfied that the Respondent:
A Final Order can be made for a maximum period of 12 months (1 year). However, if the court is satisfied that there are ‘special or exceptional circumstances’ that justify a longer period, the court can made a Final Order for a longer period.
Note: If a Final Order is consented to by a Respondent, an Order can only be made for a maximum period of 12 months (1 year).
It is important that this only applies in circumstances where a Respondent has been validly served with a copy of the application and timing notice of when the matter is in court. Sometimes it can take time for the police to locate and serve a Respondent to an application and it is not always done in time for the first mention or Registrar’s Conference.
Applications for PPOs are dealt with in the civil jurisdiction of the Magistrate Court. However, breaches of Orders (both Interim and Final) are considered criminal offences and are dealt with in the criminal jurisdiction of the court.
An offence of breaching a PPO is contained in section 35 of the Act and it carries a maximum penalty of 500 penalty units or 5 years imprisonment, or both.
A PPO is only enforceable, and a Respondent is only liable to potentially being charged with contravening an order, if they have been personally served with the order.
A Protected Person, or Applicant, can apply to extend a Final Order when the Order is due to expire. They are required to file an application with the ACT Magistrates Court and must provide details of the basis for which they are applying to extend the order.
Similar to the initial application process, the Protected Person and Respondent are afforded the opportunity to attempt to resolve the application 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.
Importantly – in determining whether to extend an Order, it is up to the Respondent to demonstrate why the Order is no longer necessary. This is obviously a very different consideration than when a Magistrate is considering whether to make an order initially.
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