Protection Orders
If you have a protection order it may or may not affect the mediation process, but it depends on the conditions set out in your order. Before we launch into that, it might be worth noting the basics of a protection order — What they are, how they work and what does it mean for mediation if you have one.
What is a protection order or DVO?
A Domestic Violence Order (DVO) or Apprehended Domestic Violence Order (AVO) court orders made by the court to stop threats or acts of domestic violence. The purpose of a DVO is to recognise that Domestic Violence has occurred and to prevent further domestic violence from occurring.
How does a DVO work?
DVOs generally come in two forms:
Protection order – An order made by a magistrate when they make a final decision.
Temporary protection order – An order made by a magistrate that only lasts for a short, allocated time.
Every domestic violence order has a standard condition that the respondent must be of good behaviour and must not commit acts of domestic violence. Depending on the circumstances of the case, the court can impose extra conditions to help protect the victim from the respondent. Extra conditions might exclude the respondent from:
Approaching the victim at home or their place of work. If the parties live together, there may be extra conditions allowing the respondent to enter the property to collect their things.
Approaching the victim’s relatives or friends.
Going to a child’s school or day care centre.
Communicating with the victim directly or indirectly.
What if the DVO is breached?
A DVO is only a civil matter until it is breached and then it becomes a criminal matter. A breach is when the respondent breaks the condition/s of the DVO.
If you believe that a condition of the DVO has been breached by the respondent, then you can report this breach to the police and/or to your lawyer (if you have one). It’s important to try and gather any evidence supporting your claim of breach i.e. copies of text messages, call logs etc.
How does a DVO impact mediation?
A DVO may affect mediation depending on the conditions placed in the order by the magistrate. A copy of the order will need to be forwarded onto your mediator to assess. In some cases, the mediator will not proceed with the mediation process or engage with the other party until they have viewed the conditions of the order.
The mediator will also tread carefully to ensure that communicating with the respondent and subsequently allowing an opportunity where both parties may communicate together in mediation does not result in a breach of the DVO.
The DVO may:
Provide conditions for the parties to participate in mediation.
Prohibit the parties from participating in mediation.
Be ambiguous or silent about whether the parties can participate in mediation.
If your answer might be 2 or 3 then your mediator will discuss your options on how you can proceed which could be:
Wait for the order to expire before mediating. If the order is due to lapse soon and you are not renewing it.
Seek to vary the order from the magistrate so participation in mediation is clearly set out.
Issuing a section 60i certificate that reflects that the case is not appropriate. This will allow you to proceed to Family Court to have your parenting matter heard.
Where the order is silent or unclear, the mediator may make a judgement call based on the information and circumstances of the case and allow your case to proceed.
Alternatively, if your DVO does allow the provision of mediation services but you do not feel comfortable about the process then speak with your mediator about it. They can identify your concerns and look at other ways of mediating i.e. shuttle or co-mediation etc. They may also deem your case not appropriate based on your circumstances and issue you with a Section 60i certificate.
How to apply for a DVO?
To apply for a protection order you can apply for one at any Magistrates Court. There are forms available online or at the registry of your local Magistrates Court and the filing fee is FREE. You can apply for it yourself or a police officer may apply for you.
Latoya Percival is an experienced Family Dispute Resolution Practitioner with Simple Separation, a child-centred divorce settlement service helping couples achieve a quick, amicable and legal separation or divorce. To find out more, book a free consultation with Simple Separation here.