Family violence protection orders can be a lifeline, but the system needs reforming
- Written by: Heather Douglas, Professor of Law and Deputy Director of the Centre of Excellence for the Elimination of Violence Against Women (CEVAW), The University of Melbourne
Every year across Australia, more than 100,000 people obtain a family violence protection order.
For some victim-survivors, protection orders provide a much-needed safety net. They can help prevent further violence from occurring.
Protection orders are future looking. They aim to stop a specific person (the respondent) using family violence against the victim-survivor in the future.
While they can be helpful, the system is far from perfect. Here’s how these orders work and what could be done to improve them.
What is a protection order?
When a victim-survivor has experienced, or is experiencing family violence, they may apply for a protection order. Any adult, and in some places children, can apply.
Evidence shows most orders are made to protect women against their current or previous male intimate partner. In some places, it’s common for police to apply for the order to protect the victim-survivor.
Generally, a magistrate can make a final protection order when they are satisfied the respondent has committed family violence against the victim-survivor and is likely to continue to do so, or to do so again.
A protection order includes conditions. These may include that the respondent must not commit family violence, that they stay a certain distance away from the victim-survivor’s home, work, or school or that they do not not contact the victim-survivor except in a specific way (such as through a lawyer).
Civil or criminal?
The protection order system is described as a hybrid civil/criminal system.
The process of obtaining a protection order is a civil process, and the magistrate must be satisfied on the balance of probabilities that the order is appropriate.
Police are expected to enforce protection orders. If a condition is breached, the respondent can be charged with a criminal offence of breaching the order.
If the magistrate is satisfied beyond a reasonable doubt that a condition has been breached, the respondent will be found guilty. Beyond a reasonable doubt is a higher standard of proof than the civil standard of balance of probabilities.
Depending on the situation, a breach of a protection order can result in a prison sentence. The threat of criminal sanction provides an incentive to some respondents not to be violent.
A court quagmire
The protection order system in each state and territory is slightly different. The orders have different names, the definitions of family violence that underpin them is different, the orders made can have different durations from months to years, and they apply to different relationships.
Protection orders are part of state and territory law. The family law system is part of the federal law system. This state/federal divide can be a problem.
State and territory magistrates have the power to include children as protected people on protection orders across Australia. Magistrates can also vary family court orders, where they think people are unsafe.
However, victim-survivors report some magistrates are reluctant to include children on protection orders. It’s also rare for magistrates to vary orders coming from the family court. This may be because some magistrates see the family law system as responsible for making orders about children.
This state/federal divide often requires victim-survivors to navigate two separate court systems to seek protection and resolve parenting or property disputes.
The disconnect between systems also facilitates systems abuse with respondents playing off systems against each other, delaying legal cases, forcing ongoing contact and further abusing victim-survivors.
More work to do
Despite these challenges, protection orders have been associated with reduced domestic violence. Research from the Australian Institute of Criminology found the orders seem to be more effective where the victim-survivor can be more independent and has fewer ties to the respondent.
In 2017 laws were changed so that a protection order made in one state or territory can be enforced by police in another state or territory. This ensures victim-survivors do not need to apply for a new protection order when they move interstate.
However, the presence of a protection order does not guarantee safety for victim-survivors. In 40% of cases where a woman was killed by a current or former partner, she had a protection order.
In some cases, police misidentify victim-survivors as the violent person and take out a protection order against the wrong party.
The institutions and services that are responsible for keeping victim-survivors safe – including police and courts – have more work to do. This includes better enforcement of breaches of orders and taking allegations of family violence seriously (including non-physical abuse).
Culturally-responsive approaches must be embedded so that First Nations people are not over-criminalised.
Victim-survivors need better support to obtain protection orders through accessible information, trauma-informed practices and greater connections between the different systems.
Protection orders have the potential to improve safety for people experiencing family violence. But, the message from victim-survivors is clear: to save lives, these orders have to be policed properly and taken seriously.
Authors: Heather Douglas, Professor of Law and Deputy Director of the Centre of Excellence for the Elimination of Violence Against Women (CEVAW), The University of Melbourne
