Family Violence Orders

Contributed by Heidi Yates and Amy Bascombe and current to March 2022

What is family violence?

Family violence is a pattern of abusive behaviour that happens in many different ways. In general, it involves someone using violence and abuse to maintain power and control over someone that they have a close family or personal relationship with. Family violence can also be called ‘domestic violence’ or ‘relationship violence’. The Family Violence Act 2016 (ACT) uses the words ‘family violence’.

Family Violence:

• Is unacceptable in any form;
• Occurs in many types of relationships. This includes between partners or ex-partners who have been married, in de facto relationships, between children and their parents (including elderly parents), and in same-sex relationships;
• Can happen to anyone in our community regardless of age, culture, race, background, income level, ability, gender, sexual orientation or religion;
• Has serious emotional and psychological impacts on children who are exposed to it, even if the violence is directed at someone else in the household.

Family violence may include the following sorts of behaviour:

• Psychological or emotional abuse: for example, attempts to make you feel worthless or afraid. This may include using verbal abuse, intimidation, threats of suicide, or threats to hurt you, your children or your pets;
• Financial Abuse: this includes restricting your access to money, threatening to withdraw financial support, or making you responsible for debts that are not your own. This can affect your ability to care for your family or to leave an abusive relationship;
• Physical abuse: this is the use of violence to hurt, control or intimidate you. It may include hitting, punching, slapping, kicking, strangling or using weapons;
• Sexual abuse: this is the use of sex as a way to control, hurt and intimidate you. This may include sexual assault, forcing you to view pornography or forcing you to participate in unwanted sexual acts;
• Social Control: this includes isolating you from family, friends, and the community, or restricting your access to family or cultural events and activities like religious meetings or education;
• Stalking: this is when a person follows or watches you or visits places where they know you will be to try to monitor your whereabouts and intimidate you;
• Intimidation: this is abuse to make you scared or fearful. It can be obvious or subtle, including threatening statements, looks or gestures or other behaviour that makes you feel afraid;
• Harassment: this is repeated unwanted contact by the abusive person. It can include contact made directly, by phone, email, text messaging, or on social networking websites or through another person.

What is the legal definition of ‘Family Violence’?

The Family Violence Act 2016 section 8 says that family violence means any of the following behaviour by somebody towards their family member:

• Physical violence or abuse
• Sexual violence or abuse
• Emotional or psychological abuse
• Economic abuse
• Threatening behaviour
• Coercion or any other behaviour that controls or dominates the family member and causes the family member to feel fear for their own or someone else’s safety or wellbeing
• Behaviour that causes a child to hear, witness or be exposed to any of the behaviours listed above

Family violence includes stalking, harming an animal, damaging property, and sexually coercive behaviour. The legal definition of family violence is very broad and you can ask for legal advice if you are not sure if what has happened to you fits the legal definition.

What is a Family Violence Order?

Family Violence Orders are made under the Family Violence Act 2016 (ACT).

A Family Violence Order is an order is made by the ACT Magistrates Court that can protect you from someone who is your ‘family member’ under section 9 of the Family Violence Act 2016 (ACT). This includes someone:

• Who is or was your domestic partner – including your spouse or de facto partner;
• Who you are, or have been, in an intimate relationship with (this does not necessarily mean a sexual relationship);
• Who is related to you biologically (e.g. your child, brother or aunt);
• Who is related to you by marriage or through a current or former domestic relationship (e.g. your sister-in-law);
• Who could reasonably be considered to be related to you, for example, by Aboriginal or Torres Strait Islander custom or tradition;
• Who is a child of your domestic partner or former domestic partner;
• Who is a parent of your child.

A Family Violence Order can tell the person using violence to stop doing things such as:

• Hurting you;
• Staying in the house you share;
• Contacting you face-to-face or by telephone, text message or email;
• Threatening you;
• Harassing you or being offensive to you;
• Damaging or keeping your property;
• Hurting or threatening to hurt your pets;
• Going to places where you or your children would usually go (e.g. home, work or school);
• Getting another person to do any of these things to you;
• Holding a firearms licence and keeping guns in the home.

It is possible to have a Family Violence Order with conditions that allow you and/or your children to live with or have contact with the person using violence.

Will the other person get a criminal record?

A person does not get a criminal record if there is a Family Violence Order against them. They only get a criminal record if they are found guilty in court of not doing what the Family Violence Order says. This is called ‘breaching’ the Family Violence Order.

What if the person isn’t related to me?

If the person using violence isn’t related to you (as set out in the categories above), you can apply for a similar order called a Personal Protection Order (PPO). A Personal Protection Order is used when the applicant and the respondent are not related and are not in a relevant relationship.

If a person is being violent to you because of the work you do (e.g. the person has problems with Centrelink and you are a Centrelink worker), your employer can apply for a special type of order called a Workplace Protection Order. See our Chapter on Personal Protection Orders and Workplace Protection Orders for more information.

Should I apply for a Family Violence Order?

Family Violence Orders protect the safety of a person and/or their children. Orders give the respondent a clear message that their use of violence is unacceptable and that things have to change. For many people, the decision to apply for an order is not an easy one to make.

If you do not want to get an order, or haven’t made up your mind yet, there are other things you can do to stay safe:

• Support from family and friends: talk to your friends, family and neighbours to work out a plan to keep you and your children safe when the other person is using violence. This might include always having a mobile phone with you, arranging to stay with a friend or family, or having someone stay with you at your house;
• Domestic Violence Crisis Service (DVCS): Talk to someone at the DVCS about your situation and how you can keep yourself and/or your children safe;
• Warning Letters: A lawyer at Legal Aid may be able to write a ‘warning letter’ for you. Warning letters can tell the other person that if the violence continues, you will apply for an order; and
• Counselling: consider seeing a counsellor who specialises in domestic violence counselling (see Useful Contacts).

Even if you decide to apply for a Family Violence Order, you may wish to take some or all of the above steps to get the support that you need to stay safe.

Do I have to have a lawyer to apply for a Family Violence Order?

Many people apply for a Family Violence Order by themselves, but you can also have a solicitor represent you. It is often helpful to get advice about your situation before you apply, particularly if there are children involved. Legal Aid provides free advice, and in some cases representation, in Family Violence matters. For further details, see Useful Contacts.

Can I include my kids on the order?

Yes – if your children are aged under 18 and are also at risk of family violence, including by being exposed to the family violence you are experiencing, you can apply to have them included on the Family Violence Order. Whether the Court will agree to include your children on the order will depend upon your individual circumstances. In most instances, it is recommended that you seek legal advice before applying for an order including children.

Application process

If you have decided to apply for a Family Violence Order, it is important to know that the person who has engaged in family violence (the ‘respondent’) will be given a copy of your application and will be able to read the allegations you have made about them.

Applications for interim orders

If you have decided to apply for a Family Violence Order, you also need to decide if you are going to apply for an interim order, which can keep you safe whilst you are waiting for a final order.

You should apply for an interim order if you are currently experiencing family violence or are at risk of family violence in the short term. You should also apply for an interim order if your property is at risk of substantial damage from the person using family violence.

If you apply for an interim order before 11.30am on a weekday, the Court will make a decision that day about whether to grant you an interim order. If you are at court and file after 11.30am, your application will usually be decided the following day. If you have filed after 11.30am, you can ask the Court to decide your application that day. However, the Court will usually only do so where they are satisfied that your application is sufficiently urgent (usually because you are physically at risk).

The Court will make an interim order if they decide that it is necessary to protect you—and/or your children—from family violence, or to protect your property from substantial damage. The Registrar or Magistrate may ask you some questions to help them make this decision and you will need to ‘swear’ (for those who believe in a God) or ‘affirm’ (promise) that you will tell them the truth.

If the Court makes an interim order, the order gets sent to the police that afternoon. The order starts working as soon the police give a copy of the order to the respondent. The order stays in place until your application for a final order is finalised (either by a decision of the court or by agreement with the respondent).

Whether or not the Court grants you an interim order, they will give you a date and time when you and the respondent both need to come back to Court for a return conference.

Applications for final orders

If you do not think that there is an immediate risk of family violence, you can apply for a final order only. You can lodge this application at the Court any weekday from 9am to 4.30pm. When you lodge it, you will be given a time and date when you and the respondent both need to come back to Court for a return conference.

When does the order start working?

If the respondent is not at Court when a Family Violence Order is made, the order starts working as soon as they are personally served with the order (that means, given the order) by the police. If the respondent is at Court when the order was made, the order starts working straight away.

Return Conference

The first time you will need to come back to Court after you lodge your application, or after an interim order is made, is for what is called a return conference. This is a type of mediation where you and the respondent sit in separate rooms at the Court and a person who works at the Court (called a ‘Deputy Registrar’) will go between you both to see if you can agree on what should happen next. You can have a lawyer or a support person with you if you choose. You do not need to bring any proof of the violence or any witnesses to the return conference.

If the respondent does not turn up to the return conference and the Court has proof that the respondent has been served, you can go into a courtroom and ask a Magistrate to make a final order with the same restrictions on the respondent that you asked for in your application.

If the respondent does come to the return conference, they can:

1. Consent (agree) to the order being made final with the same restrictions you asked for in your application;
2. Consent to the order being made final, but only if you agree to some changes;
3. Refuse to consent to the order, but offer undertakings. Undertakings are a promise to the Court that they will not engage in certain behaviour. Undertakings may be made using the same words as a Family Violence Order but they cannot be enforced by the Court or the police.
4. Refuse to consent to the order and not offer undertakings.

If you and the respondent cannot reach an agreement at your return conference about what should happen, the Court will give you another date and time when you need to come back to Court for another return conference and a final hearing.

Hearing

On the day of your final hearing, you will have another return conference to see if anything has changed and if there is any agreement between you and the respondent. If there is not, your case will go into court in front of a Magistrate on that day.

What do I need to prove?

The Magistrate can make a final Family Violence Order if they decide that you and/or your children have reasonable grounds to fear future family violence by the respondent, or that the respondent has used family violence in the past against you and/or your children. If the Court thinks that the incidents of family violence are minor, they still might make the order if they decide that they form a pattern of behaviour which you need to be protected from.

The court must be satisfied ‘on the balance of probabilities’. This means that it has to be more likely than not that the violence has occurred or that you have ‘reasonable grounds to fear violence’ from the respondent.

Ultimately, even if there is a finding that family violence has occurred, the Court has a discretion about whether they will agree to make a final Family Violence Order. Factors like how long ago the violence occurred and the context in which the violence occurred will be weighed up by the Court in the decision-making process.

How do I prepare for a hearing?

Whichever side of the dispute you are on, it is a good idea to seek legal advice well in advance of your hearing. An experienced lawyer who hears all the details of your case is in the best position to give you individual guidance and assistance in preparing for the hearing. Some of the things they will talk to you about are:

• What sort of evidence you will need to prove your side of the story – this might include bringing witnesses to the hearing or getting other information by subpoena;
• How to prepare to give your evidence in Court – you will usually need to do this by sitting in a witness box and ‘swearing’ or ‘affirming’ to the Court that you will tell the truth;
• How to prepare for the other person in the dispute (or their lawyer) to ask you questions – this is called cross-examination. The respondent is not allowed to directly ask you any questions, but their lawyer or an officer of the Court can ask you questions on the respondent’s behalf;
• If you will not have a lawyer with you at Court, how you can present your case to the Court in a way that persuades the Magistrate to make the decision you want them to make.

If I am not successful at the hearing, will I have to pay the other person’s legal costs?

If you are the applicant for an order you will not usually be responsible for the respondent’s legal costs. In rare circumstance, the Court will tell you that you have to pay the other person’s legal costs. This may happen, for example, if they think you have wasted the Court’s time, brought the application for no reason, or have not followed the Court’s instructions on purpose.

What happens if the respondent does something that the order says they are not allowed to do?

If the respondent does something which the order says they must not do, you can report this behaviour to the police as a ‘breach’ of the order. A breach of a Family Violence Order is a criminal offence, and if the respondent is charged and convicted of a breach, they face up to five years in prison and a fine of $75,000.

You should keep notes or other records every time you think the respondent has done something that they were not allowed to do under the order. It is important to keep these records even if you aren’t sure whether you want to report this behaviour to police.

How long does an order last for?

A final Family Violence Order can be made for any period of time up to 24 months. The court may also make your order for a shorter time period. You should read your order carefully so that you know when it ends. If you’re not sure how long your order lasts for, seek legal advice.

In special or exceptional circumstances, you can ask the court to make an order for longer than 24 months. You should seek legal advice before asking for an order to last longer than 24 months.

What if I want to stop or change my order?

If any part of the interim or final order are not working, or your circumstances change, you can apply to the Court to have the order changed or to withdraw it.

Changes: If you want an order changed, you will need to go through the same process as you did with your first application. You will lodge your application, have a return conference, and if there is no agreement about the change you are seeking, you will have to come back to court on another day for a second return conference and a final hearing.

Withdrawing (stopping) an order: If you want to withdraw an interim order, you can come to the court and ask for it to be stopped at any time. This involves filling out an application and giving it to the court registry.

Once an order is final, you are required to apply to the Court to have the order ‘revoked’ (removed). The Court has discretion about whether to remove the order and you should seek legal advice prior to lodging an application to revoke a final order.

My order is about to run out, can I get it extended?

Yes, you can apply to have your Final Family Violence Order extended. However, you must apply to the Court to have your order extended before it runs out. To make sure there is not a gap where you are not protected by an order, you should apply for the extension approximately two months before your order expires. It can be easier to get an order extended rather than start again and apply for a new order.

For respondents: I’ve been served with an order – what should I do?

Respondents must comply with the order. If you do something which the order says you must not do, you may be charged with a breach of an order which is a criminal offence. If you do not understand the order, you should seek legal advice immediately. If you would like legal advice or for a lawyer to come with you to Court, you should contact Legal Aid or a private lawyer (see Useful Contacts).

The paperwork the Police have given you includes a copy of the applicant’s application so that you know what type of allegations the applicant has made. The paperwork will also include a date that you must attend court. If you do not attend court in person on that day, a final order may be made against you in your absence.

Other things to think about

Will my order work outside of the ACT?

All orders made after 25 November 2017 are automatically recognised across Australia. This means that the order can be enforced outside of the ACT, in every Australian state and territory. If you have an order that was made prior to this date, you can apply to have that order registered nationally. This involves filling out an application and giving it to the court registry. You may wish to seek legal advice about this process as there are complications in some cases.

Getting Financial Assistance

If someone has committed physical violence against you and you were injured, you may be able to seek financial assistance from the ACT Government to help you recover from your injuries. There are also a range of loan and grant schemes in the ACT which provide financial support to people leaving a violent relationship. Your lawyer, support worker or ACT agencies can give you more information on this assistance (see Useful Contacts).

What if my Family Law order says something different to my Family Violence Order?

If you have orders from the Family Court, it is a good idea to seek legal advice before you apply for a Family Violence Order (FVO). If there are any differences between your Family Court Orders and your FVO, then whatever is in the Family Court Orders will generally override the inconsistent parts of your FVO. For example, if your FVO says that the respondent must not contact you but your Family Court Order says that the respondent may contact you to arrange handover of the children, then the respondent will generally be allowed to contact you for that specific purpose only. It is important to seek legal advice if your orders say different things, or if you do not feel safe based on the arrangements in your Family Court Orders.

What about my immigration status?

Family Violence Order Applicants: Some visa holders are able to continue their application for permanent residency, even if the relationship that forms the basis of their application has broken down due to family violence. The visa holder will be required to provide evidence of the family violence. This evidence can include a Family Violence Order. These provisions have been introduced to ensure that visa applicants who experience family violence are able to leave abusive relationships without harming their migration prospects. Applicants should get migration advice as soon as possible to protect their migration status.

Family Violence Order Respondents: If you are the respondent to a Family Violence Order and you are on an Australian visa, you should also seek migration advice as soon as you can after you are served with the FVO application to find out whether the order may impact your migration status.