The most common legal response to family violence is a protection order. These orders are legislated under civil law in each state and territory and have different names (refer to Table 20.3). In some cases, the patient may wish to pursue criminal charges. If someone shares property or has children with the person using IPAV, they may seek family law orders. Patients who have insecure visa status may have certain options under migration legislation.
If your patient has experienced family violence, recommend, if appropriate, that they go to the police or relevant local community services, obtain legal advice or approach the local magistrates’ court for information and referral.
Specially trained police officers can assist victims/survivors to access appropriate services and emergency orders to provide immediate safety. Doctors or patients can seek advice and information from the police on behalf of a patient without disclosing the patient’s name. You can also encourage patients to talk to the police themselves, even if they don’t identify themselves.
The term ‘protection order’ is used in this chapter as a generic term for orders specifically designed to provide protection from future family violence. States and territories have different names for these orders. They are variously called ‘intervention orders’, ‘domestic violence orders’, ‘apprehended domestic violence orders’, or ‘restraining orders’ (refer to Table 20.3). Protection orders may be made by the court and in some emergency cases by the police. Protection orders attempt to restrict or prohibit certain behaviours by the perpetrator. Protection orders may, for example, include prohibiting a person from contacting, harassing or threatening the victim/survivor and/or approaching the victim/survivor’s home or place of employment. The court may also have the power to order that the perpetrator be excluded from the family home.
Details of these orders are different for each state and territory (refer to Table 20.3). However, protection orders may be made to protect a person from future acts of family violence, such as assaults, including sexual assaults; threats and/or harassment by a partner or family member; and actual or threatened damage to property.
It is preferable that a person obtaining a protection order asks for advice about the legislation in their state or territory – what orders are available, and what will afford them the most adequate protection (refer to Resources for links to appropriate sources for such advice).
If the patient decides to report the family violence to the police, the police will be able to provide assistance with and information about protection orders.
Patients do not have to report the family violence to the police to obtain a protection order. Court support services can be very helpful for women who have experienced family violence. These services are offered by local community agencies, and their availability can vary. Often community support services have offices at the local or magistrates’ court.
If necessary, further legal advice should be obtained (refer to Table 20.3).
Table 20.3. Family violence and protection orders
Type of intervention
Australian Capital Territory
It is necessary to apply for a domestic violence order or personal protection order through the Magistrates’ Court. For assistance, patients can go to the Legal Aid Domestic Violence and Personal Protection Orders Unit located at the Court.
Further information: Victim Support and Legal Aid ACT.
New South Wales
The patient or the police on their behalf can apply for either an apprehended domestic violence order (ADVO) or an apprehended personal violence order (APVO), where the people involved are not related and do not have a domestic relationship (eg they are neighbours or work together).
Further information: refer to the topic ‘domestic violence’ at Legal Aid New South Wales.
The Domestic and Family Violence Act 2007 enforces mandatory reporting to police by all adults who reasonably believe someone has been, is at risk of or is experiencing serious physical harm through family or domestic violence. The patient, someone on their behalf with their consent, or the police can apply to the court for a domestic violence order. If the violence is being committed by someone who is not in a family or domestic relationship with the patient, the patient can apply for a personal violence restraining order.
Further information: Children and Families NT
The patient or the police or an authorised person such as a friend, relative or community work (on the patient’s behalf) can apply for a domestic violence order (protection order). This covers intimate personal relationships, family relationships and informal care relationship (where one person relies on another for daily living).
Further information: Legal Aid Queensland and Queensland Courts.
Police, on behalf of the patient, can either issue an intervention order if grounds to do so and the perpetrator is present or in custody, or they can apply to the courts. A patient, or someone on their behalf, may also apply for an intervention order to the courts directly.
An interim intervention order may initially be issued, after which it may be confirmed by the magistrates’ court.
Further information: South Australia Government.
Patients can seek a family violence order (FVO) or restraining order with assistance from the police, legal aid commission or court support and liaison service.
More information: Tasmanian Government – Family and Community violence and Magistrates Court Tasmania – Restraining orders
For cases of domestic or family violence and assault, patients can apply for a restraining order at the Magistrates’ Court, or the police may be able to do this on the patient’s behalf. The police can also impose a police order, which is a temporary form of restraining order that can be put in place while the restraining order is applied for through the courts.
Further information: Western Australia Police and the West Australian government.
There are two types of intervention orders in Victoria. A patient may apply for a family violence intervention order or a personal safety intervention order where the perpetrator is not a family member. The Magistrates’ Court of Victoria provides useful information about taking out these intervention orders.
Victoria Legal Aid has booklets available for download regarding the law and sexual assault or family violence on its website. There is also further information about both types of intervention orders
Do protection orders make a difference?
Study results vary in relation to the effectiveness of protection orders. Most studies have been conducted in the United States, where protection orders have been associated with:
- reduced police incidents and emergency department visits by the victim/survivors, both during and after an order has expired
- victims/survivors’ being more likely to call the police for family violence incidents that did not involve physical assault
- improved police response to incidents of family violence.8
Criminal law responses
When patients decide to report family violence to the police, criminal charges may be laid against the perpetrator of family violence. The police will initially decide whether to charge a perpetrator with a criminal offence, and in making that decision the police will take the patient’s views into account. Where the perpetrator is charged with a criminal offence, the patient will be required to provide a statement to the police and may be required to later give evidence in court.
Family law responses
Patients may have children or share property with the perpetrator. In these circumstances the safety of the patient and children may be strengthened if court orders are made about child contact and property arrangements. Where these issues are relevant, patients should be referred to the Family Court or Family Relationships Online, and encouraged to seek legal advice and information from a lawyer (refer to Table 20.1) or community service.
Immigration law responses
Some patients may have an insecure visa and be concerned that formal reporting of family violence may place them at risk of being deported or not having their visa renewed. Patients who hold partner visas can apply for consideration under the special provisions relating to family violence under the Migration Regulations 1994 (Cth). Under these provisions, the patient may be eligible for a visa.
Where visa issues are relevant, patients should be referred to the Australian Government Department of Home Affairs and encouraged to seek legal advice and information from a lawyer (refer to Table 20.1) or a community service.
Refer also to the chapter on working with migrant and refugee communities.
Legal systems abuse
Perpetrators of family violence might use a range of litigation tactics to gain an advantage over or to harass, intimidate, discredit or otherwise control the other party.9 This may involve, for example, making false reports to police or other services, commencing litigation simply to harass or intimidate the other person or extending litigation unnecessarily. Increasingly, the misuse of the legal systems in this way is recognised as an extension of family violence.
If a patient reports this experience, they should be encouraged to seek legal advice and information from a lawyer or a community service (refer to Table 20.1).
Further information is available on the National Domestic and Family Violence Bench Book.