When applying to extend a family violence order, there are several important factors to consider when ensuring the safety and protection of affected parties. Family violence orders are typically issued under various state and territory laws, so the specific requirements and processes vary; however, there are some general considerations that you should consider:
1. Evidence of Ongoing Risk
When seeking an extension of a family violence or personal violence order, you need to demonstrate that the risk of family violence continues to exist. This may involve presenting evidence of recent incidents, threats, harassment, or other behaviour that suggests the need for continued protection.
2. Supporting Documentation
Gather any relevant documentation, such as police reports, medical records, witness statements, text messages, emails, photographs, or other evidence that can help substantiate your claim of ongoing family violence.
3. Victim’s Perspective
Consider the asserted victim’s perspective and their feelings of safety. If the victim feels that their safety is at risk, it can be a significant factor in extending the order.
4. Expert Opinions
Expert opinions from counselors, psychologists, social workers, or other professionals who have worked with the asserted victim can provide valuable insight into the ongoing impact of the family or personal violence and the need for continued protection.
5. Consent of the Affected Person
Depending on the jurisdiction, the affected parties (the victim and the respondent) may consent to the extension. If the respondent agrees to the extension, this can simplify the process. If not, you will need to present evidence to the Court at final Hearing.
6. Changes in Circumstances
Consider any changes in circumstances that may affect the need for an extension. For example, if the respondent has undergone counselling or rehabilitation, or if the victim’s situation has changed, the court might take these factors into account.
7. Compliance with Existing Orders
If there is already existing family or personal violence orders in place, ensure that both parties are aware of and complying with their terms. This may assist the Court in weighing up whether an extension is required.
8. Child Protection
If there children are involved, consider their safety and wellbeing. Any evidence of family violence or personal violence’s impact on children can be relevant to the Court’s decision.
9. Onus of Proof
When a party applies for an extension of a family violence or personal violence protection order, the onus is on the respondent to prove that the order is no longer necessary. This is evident in the case of TS v DT [2022] ACTSC 137, Kennett J stated (at [23]):
According to the terms of s 86(1) [of the FV Act], the Magistrates Court “must” extend a final order when asked to do so “unless” it is satisfied that an order is no longer necessary to protect the protected person from family violence by the respondent to the other.
His Honour continued at [25]:
The other aspect of s 86 that should be mentioned is that it requires the Magistrates Court to be positively “satisfied” that a protection order is no longer necessary before it can refuse to extend the order. In the context of a curial proceeding, it is not inappropriate to describe that formulation as casting an onus of proof on to the respondent to the order. If there is insufficient evidence for the Magistrate Court to reach a conclusion about the continued necessity for the Order, it must be extended. At least in a practical sense, therefore, it is up to the respondent to the Order to show that it is no longer necessary.
10. Legal Representation
Both the victim and the respondent have the right to legal representation during these proceedings. If you are seeking an extension or opposing an extension, it is wise to have legal counsel to ensure your case is properly presented and your rights are protected.
How can we help?
Should you require representation, Snedden Hall & Gallop has an experienced family law team that can assist with your unique situation. Get in touch today on 02 6285 8000 or by email.
