How Do Personal Protection Orders and Family Violence Orders Work in the ACT?

Sometimes thought of as restraining orders by a lot of people, there are two main types of orders that a person can apply for when they have experienced violence in the Australian Capital Territory.

How do they work? What order should a person apply for? What does the Court consider when granting these types of orders?

We address these questions in this article.

In a nutshell, personal protection orders are the type of order that a person should apply for if they have experienced personal violence by somebody who is not a family member.

Pursuant to section 8 of the Personal Violence Act 2016, “personal violence” means any of the following behaviour by a person in relation to another person:

(a)  physical violence or abuse;

(b)  sexual violence or abuse;

(c)  threatening behaviour;

(d)  stalking;

(e)  harassing, intimidating or offensive behaviour;

(f)  damaging property.

A workplace protection order is similar to a personal protection order, but instead, the employer of a workplace can apply for orders to protect the workplace (and people at the workplace) from personal violence from the respondent.

The type of orders that can be made are similar to those that can be made in family violence order cases.

How Does the Court Process Work?

Interim Orders

Firstly, if you (or a police officer) applies for orders, the option is there to apply for interim orders and final orders. If interim orders are applied for, the applicant will often have to give evidence at Court about what has happened and why they need protection from the Court.

Based on the evidence given at this hearing, the Court will then determine whether they are satisfied that there is a need for the Court to make interim orders to ensure the person applying from the orders is protected from personal violence and/or that their workplace or property is protected from substantial damage.

When deciding whether or not to make orders, the Court must have regard to a number of things, including, for example, the objects of the relevant legislation, any hardship to the respondent or anyone else by the Court making orders, and any previous orders or breaches of orders relating to the respondent.

Conference with Registrar at the ACT Magistrates Court

After the Court has decided whether or not to make interim orders, or if no application for interim orders was made, the Court schedules a time for a conference.

The conference process involves the parties being kept in separate rooms (often in different parts of the Court complex) and a Registrar of the Court going between the two rooms and assessing whether there is a possibility the matter can resolve.

The ways that the matter could potentially resolve at a conference are:

1. Final orders being made by consent;
2. Undertakings being agreed to by the parties (that is, an undertaking or agreement by one or both of the parties to not engage in certain conduct, usually similar to the orders that the Court can make); and
3. Withdrawal of the application by the applicant for orders.

Undertakings do not have the same effect of orders, as a person can be charged with a criminal offence if they breach a personal protection order or a family violence order. Breach of an undertaking can be evidence in support of a later application for orders, but it is not a criminal offence to breach an undertaking.

Final Hearing

If the matter does not resolve at the conference, the case will be set down for a hearing before a Magistrate of the ACT Magistrates Court.

This is a formal Court hearing where the parties lead evidence in support of their case. The rules of evidence do not have to apply strictly in these cases and the Court can inform itself of the facts of the case however it sees fit, but the final hearing is still a fairly formal process before a Magistrate. Parties are expected to make arrangements to have any witnesses they rely on to be available at the Court to give evidence.

In personal protection order cases, the Magistrate will determine the Applicant’s case and will make final orders if they are satisfied that the respondent has engaged in violence and may engage in violence during the period which the orders are intended to operate.

In family violence order cases, the Magistrate will make family violence orders if they are satisfied that the applicant has reasonable grounds to fear family violence by the respondent or the respondent has used family violence against the applicant.

The Magistrate will consider these matters against the backdrop of the objects of the relevant Act and the guiding legal principles throughout each Act such as the principle that the safety of the affected person is paramount and that the orders are to operate in a way which is the least restrictive on the Respondent.

After the case is determined by the Magistrate, the parties can apply for review of the orders or can appeal the case to the Supreme Court.

The orders, and the proceedings for the orders, are not criminal matters or criminal proceedings. Though these type of cases clearly involve considering whether violence has occurred and a police officer may apply for orders on behalf of an applicant, the proceeding is a civil proceeding and is not a criminal prosecution.

We recommend being legally represented in these kind of cases if you can.

The proceedings are designed to be as informal as possible in the Magistrates Court meaning that people can represent themselves if they wish; however, it often helps to get legal advice about the strengths and weaknesses of your case prior to the conference, because you can then learn whether your case is the kind of case which should be fought or which should resolve earlier. There are many tactical reasons why you might fight your case or resolve it earlier, and a lawyer can advise you about what tactics to adopt in your case.



Lawyers are also trained to focus on the real issues in a case and present your case in a way which puts forward your best possible case, which can strengthen the possibility of getting the outcome you want in your case. If the other party has a lawyer, though not always something which occurs in each and every case, there is also a possibility that if you lose at the hearing, you may be ordered to pay the other party’s legal costs in certain circumstances.

Can Andrew Byrnes Law Group Represent Me?

Andrew Byrnes Law Group has extensive experience in family violence order cases and personal protection order cases. If you want high quality, tailored legal representation in a family violence order or personal protection order case, please contact us today.

We are confident you will have your best possible case put forward on your behalf by Andrew Byrnes Law Group.