Family Harm

Question 1

Define Applicant

Answer 1

A person who is or has been in a family relationship

• The representative of a person lacking capacity on that person behalf
• A representative or an approved organisation on behalf of an applicant

If Applicant is a child they can only apply by

• An approved representative on the child behalf
• If aged 16 years or over they can make an application without a representative
• If authorised by the court to do so without a representative

(Who applies for it)

Question 2

Define respondent

Answer 2

Most cases the application for a Protection Order will be sough against the person with whom the applicant has a family relationship.

(Who its against)

Question 3

Standard conditions for Protection Order

Answer 3

• Violence = in any form
• Contact = if not at the same address, no contact condition. If they are living at the same address, no contact provision is automatically suspended = may not loiter, follow
• Weapons = firearms licence is to be suspended when a temporary order is made & revoked on the making of a final order. Must surrender weapons and licences to police within 24 hours or receiving PO. Must not possess/have under their control any weapon.

Question 4

Application made with/without notice

Answer 4

Most applications are made without notice, which means the respondent is not present when, or is unaware that an application for a protection order is being made.

Question 5

Define temporary order

Answer 5

A protection order made on an application without notice is a temporary order that, unless sooner discharge becomes final by operation of law 3 months after the date the order is made

Unless the respondent

• Notifies the court that they wish to be heard on the question of whether a final order should be substituted for the temporary order or
• Applies under other sections of the act for variation or discharge.

Temp order/Temp protection order = no difference just name TPO becomes final after 3 months

Question 6

Section 98 to 102 Family violence Act 2018

Answer 6

Set out the standard conditions relating to weapons

Pursuant to section 98(1) will be a condition of every PO that

• The respondent must not possess or have under their control any weapon and
• The respondent must not hold a firearms licence

Question 7

Section 113 Family violence Act 2018

Answer 7

Power of arrest states

• Where a PO is in force any constable may arrest without warrant any person whom the Constable has GCTS has
  a) Section 113(a) contravened the protection order
  b) Section 113(b) failed to comply with any condition of the protection order.

Question 8

Police Bail

Answer 8

In circumstances where the arrested person is not Brough before the court within 24 hours the person may at the end of that period be released on Police bail.

Police can impose conditions of bail, including curfew provisions and non-residency and non-association clauses, however these conditions must not interfere with the person employment.

Question 9

Protection order offences 
Section 112(1)(a) and (b)

Answer 9

It is an offence for a person to, without reasonable excuse

• Sec 112(1)(a) - do any act in contravention of a protection order
• Sec 112(1)(b) - fail to comply with any condition of a protection order

Every person who is convicted of an offence against this section is liable to imprisonment.
Penalty - 3 years

Question 10

Breaching a Protection Order

Answer 10

Respondent doing an act prohibited by the protection order.

Whether the respondent knows of the orders existence does not affect its validity. The respondent must know of its existence if criminal charges are to be filed for breaching that order.
They do not necessarily have to be formally served with the order to know of its existence.

Question 11

Define 24 hour cooling off period

Answer 11

Where a person is arrested for breaching a protection order the person must not be released on bail by a member of police during the 24 hours immediately following the arrest (Bail Act 2000 sec 23).

Police are still required to bring that person before a court as soon as possible and the court may bail that person notwithstanding that his occurs within 24 hours of arrest.

Question 12

Court orders and standard conditions

Answer 12

All orders contain conditions designed to prevent harm. On making a protect order the court must direct the respondent to attend a specified programme aimed at preventing the respondent from engaging in violence unless the court considers there is a good reason for not making such direction.

Question 13

When to arrest for PO

Answer 13

Section 113 - Power to arrest
Respondents who fail to surrender on demand all firearms in their possession, or their firearm licence may be arrested for breach of the protection order.

Question 14

Who can issue police safety orders

Answer 14

Any constable may issue a PSO if authorised by a qualified constable.
A qualified constable means a constable who is of or abounded the rank of sergeant.

Question 15

Define person at risk

Answer 15

• The person named in the order (For whose safety the order is issued)
• Any child residing with that person (Includes children of the person whom the order is to be issued against whether the person at risk is also a parents or not)

Question 16

Define bound person

Answer 16

When a constable issues a PSO the person against whom the order is issued becomes a bound person. They are bound by the conditions outlined in the PSO.

Question 17

Section 32 Family Violence Act 2018

Answer 17

Power to detain
Constable proposing is issue a PSO against any person may detain that person for a period not exceeding 2 hours.
They can be detained at the address where the police have found them or transport them to a police station and hold them until the order has been served of the 2 hours expires.

Search them as they have been detained.

Question 18

Section 24 (Family violence Act 2018)

Answer 18

PSO must be served by a constable as soon as practical on the bound person. However if the order is not served within 48 hours of being issued the order lapses.
All efforts should be made to serve the notice within 48 hours if possible.

Question 19

Duration of PSO

Section 35

Answer 19

PSO comes into force immediately on being served on the bound person.
PSO continues in force for a period specified in the order but no longer than 10 days.

Starting point should be at least 24 hours and then factor in other relevant considerations (Public holiday, access to the court)

Question 20

Breaching of PSO

Answer 20

• Any person against whom a PSO is going to be issued, failed or refuses to remain at a place where they are detained.
• Where a bound person breaches (Fails or refuses to comply with any condition) a PSO you may apply to the court for a warrant to arrest. This provides a power of entry.
• Detain any person against whom a PSO is issued who fails or refuses to comply with any condition of the order, a constable may ‘take the person into custody’
• If you take a person into custody for breaching a PSO you may use such force as is reasonably necessary.

The person must be brought before the District Court with 24 hours.

You have 1 month to locate and bring that person into custody.

Question 21

Court options on PSO

Answer 21

When dealing with a breach of a PSO the court may

• If the PSO has or has not expired, direct the police to issue another PSO not to exceed 10 days to be served on the bound person as soon as possible. The bound person can be detained for no more than 2 hours to allow for the PSO to be issued and served.
• Adjourn the proceedings so that a District Court Judge can consider whether or not to issue a temporary Protection Order. The bound person can be detained for up to 2 hours to allow the temporary Protection Order to be issued and served.