When applying for, or making a Domestic Violence Protection Order, you must let the Magistrate know if there are any current Family Law Orders or Proceedings in the Family Law Courts about your children.
A request can be made for your children to be included on a Domestic Violence Protection Order to protect them from violence. The law says a child has been exposed to violence if they hear, see, or ‘otherwise experience’ domestic violence, including helping a family member who has been hurt as a result of domestic violence or seeing damaged property in the home.
Family Law Orders, Parenting Orders and Domestic Violence Protection Order are complex, and you should get legal advice if this applies to you.
If you or your children are at risk of immediate harm, call the police.
Including children on a Domestic Violence Protection Order
You can request for your children to be included on a Domestic Violence Protection Order to protect them from violence. This includes your children and any other children living with you (ie any children spending time at your home on a regular or ongoing basis). This includes step-children or other children who spend time at your home on weekends or school holidays. It can also include an unborn child (the Order would have a condition that takes effect when the child is born).
Children can be included on a Domestic Violence Protection Order if the Magistrate thinks it is necessary or desirable to protect the child from domestic violence. The law says a child has been exposed to domestic violence if they hear, see or ‘otherwise experience’ domestic violence. This could include:
- helping a family member who has been hurt as a result of domestic violence; or
- seeing damaged property in the home.
If the Magistrate knows you have children living with you or regularly visiting your home, then they must consider including those children on the Domestic Violence Protection Order.
Domestic Violence Protection Orders and Parenting Orders
The magistrate must consider any Family Law Orders you have before deciding to make or change (vary) a Domestic Violence Order. If you have a Family Law Order about your children, or if there are proceedings in the Family Law Courts about your children, you must:
- tell the Magistrate; and
- attach a copy of the Order to your application for a Domestic Violence Order, or give a copy to the Magistrate.
A Magistrate can consider changing your Family Law Order if:
- the conditions in the Order are in conflict with conditions in your Domestic Violence Order; or
- the conditions in the Order could make you, your children or anyone else named in your Domestic Violence Application unsafe.
For example, if your Family Law Order allows the Respondent to come to your home to collect your children and these visits lead to verbal abuse, threats or any other act of domestic violence, the Magistrate can change the Family Law Order to make the collection point away from where you live. The Magistrate can also discharge or suspend your existing parenting Order if they are satisfied it would be unsafe for you or the children to continue spending time with the Respondent.
If you have a Domestic Violence Protection Order and you later apply to a Family Law Court for a Parenting Order or an Order about your children, you must tell the Court about the Domestic Violence Order.
If you have a Domestic Violence Protection Order and a Family Law Order that are inconsistent, you should get legal advice.
Can a child apply for, or respond to, a Domestic Violence Protection Order?
Children under 18 can only be the Applicant or a Respondent to a Domestic Violence Protection Order if they are in, or have been in an:
- intimate personal relationship (married, defacto, registered relationship, engaged, couple); or
- informal care relationship (where one person is dependent on the other person for help in an activity of daily living, like dressing and cooking for them).
Children cannot be an Applicant or Respondent to a Domestic Violence Protection Order if it relates to a family relationship. A child cannot apply for an Order against their parent or guardian and a parent or guardian cannot apply for an Order against their child.
If someone applies for a Domestic Violence Protection Order against a child, copies of the documents served on the child must be given to one of their parents. The child should not be served at school, unless there is no other way to serve them.
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