Restraint and Protection Orders in Tasmania (TAS)

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The Tasmania Family Violence Act of 2004 provides protection and succour for all those who suffer from or expect Domestic Abuse. Also, the restraint Orders under the Part XA of the Justices Act of 1959 allows people who fear a potential abusive action to apply for an order of restraint from the respondent.

The person that applies for the restraint against the aggressor is the applicant. And the respondent is the person that answers the charge.

Breaching the stipulated conditions of a restraining or protection order in Tasmania (TAS) is considered to be a serious criminal offence and will in most circumstances show up on an individual's Nationally Coordinated Criminal History Check Tasmania result.

When does the court issue a Family Violence Order?

The Family Violence Order applies to;

• Parties aged 16 and above,
• Currently or previously married or in a "significant relationship”,
• Related by blood, tribe or kinship (or other serious bonds),
• Have suffered Family violence.

The Relationships Act of 2003 explains a “significant relationship” to be between couples, including same-sex and de-facto relationships.

The offences that constitute Family Violence include;

• Sexual assaults
• Intimidation
• Psychological manipulation
• Social manipulation; ostracism
• Stalking
• Economic abuse
• Attempts or threats to do any of these things

Who can apply for a Protection Order In Tasmania?

Anyone within the legal age, who fear the actions of others (the respondent) can apply to have the court issue a Restraint Order or an FVO. The court can receive an application from any of them;

• Police Officer
• The person needing protection
• An affected Child
• Or other Agencies or Legal representatives the court grants leave

Also, other parties may apply for a protection order for a person on their behalf (or without their permission).

The person needing protection

Application forms can be picked, completed and submitted at the Magistrate Court. However, the applicant must provide the required details including;

• Why do they need the protection
• The evidence of abuse
• The relationship with the accused

The Police

Under the Family Violence Act 2004, the Police may enter premises or launch a private investigation if they perceive Family abuse or violence. They may also be invited into the premises, and are authorized to;

• Search the occupants
• Seize any objects or weapons in the vicinity

The Police may suspect the weapon to be used for the abuse

• Arrest and detain a suspected abuser

In serious cases, the person remains in their custody till they complete the proceedings of their Orders.

Special Orders of the Police

The Justice Act also permits a Police officer to issue a Police Family Violence Order (PVFO). The Police Officer can issue the PVFO against a person if they are satisfied;

• They committed a Family Violence Offence
• Attempted to commit a Family Violence Offence
• The PVFO can be issued against a person without the need to appear in Court.

Details of a PVFO

The PVFO is;

• Issued by the Police authority, where they are sure of a Violence Order
• The Order lasts for only 12 months
• Must be served to the respondent, with a copy sent to the Magistrates Court in Tasmania
• Will be revoked if the Court issues an Interim Order or an FVO against the same person/party

Properties of a PVFO

The PVFO can contain conditions that prohibit the applicants from certain actions like;

• Surrendering any firearm/weapon
• Orders a person against the harassing, threatening or abusing the aggrieved in any form
• Assaulting the affected person, properties, family members or Child as stipulated

During the PVFO period, the respondent may have their; permits/licenses for anything relating to the possession of a firearm suspended. Also, they will not be able to obtain new permits within that period.

How does the court issue a Family Violence Order?

The Court will consider all applications submitted by the accuser and set a date for the hearing of the Charge. If the case is an urgent and precarious one, the court can order the arrest of the aggressor, while processing the FVO application.

If the court issues a warrant for a person, with no FVO application was not made, an application should be made as soon as possible.

1. Before issuing the final orders (First Formal Hearing)

Have your lawyers represent you at both hearings

The Magistrate lists the matter for meditation between the party if the respondent contests the application

2. Final Hearing

The matter will proceed to a final hearing if the respondent still contests the application

The matter may be listed for mention before a final hearing

Have your lawyer represent you at the hearing

At the Final Hearing, the Magistrate will either uphold or dismiss your application.

If the magistrate upholds your application;

• They will make the final orders, including custom conditions as necessary
• Apply to the magistrate for the recovery of your legal costs

If the Magistrate dismisses your application;

• No orders are made
• You can still apply for recovery of your legal costs

Can orders from other states be registered in Tasmania?

If you have a protection Order made in other States or within the New Zealand jurisdiction, you can apply to register them in the Tasmania Court for continuous enforcement. Once registered, all stipulated conditions for your protection apply where necessary.

How long does the Family Violence Order Last?

The duration for an FVO or Restraint Order is stated in the copies sent to the respondent or legal representatives.

Generally, the court will make the orders for a duration they feel necessary, depending on the circumstances. However, the average duration for the Order is 12 months, or when the court revokes it.

Varying, revoking or extending an Order

Any of the affected person, Police officer, person restrained or other persons under leave of court may apply to vary a protection order.

When imposing the conditions, the Court considers all parties that will be affected by the conditions like;

• Children
• Hardships with accommodation
• Social/emotional disadvantage (children)

If the Court refuses an initial application to have an FVO or PVFO varied, there can be no further application except with leave of the court.

Also, the Court will not grant leave until they are satisfied that there is a substantial change in the circumstances that affect the Protection Order.

If a PVFO is extended or varied by the court, it becomes a Family Violence Order.

Breaching a Family Violence/Restraint Order

The Family Violence Act 2004 guides the protection laws and orders for people who fear threats or violence. Breaching conditions of this order is a criminal offence in Tasmania under the Act.

In the case of a breach, the Police will arrest the offender; remand them in custody throughout their trials. The court may issue penalties of up to;

• 20 penalty units ($3,140)
• 1-year imprisonment term

For subsequent offences;

• The fines are 30 penalty units ($4,710) and 18 months imprisonment for second-time offenders
• 40 penalty units ($6,280) and 2 years imprisonment for third term offenders
• Imprisonment terms of over 5 years for fourth and subsequent offences

Repeat offences are punished irrespective of if it were a different offender.

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