Personal Safety Intervention Orders
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What is a Personal Safety Intervention Order?
Section 60 of the Personal Safety Intervention Orders Act 2010 (“PSIO Act”) outlines the general power of the court to make such orders. A Personal Safety Intervention Order (“PSIO”) is a legal order made by a Magistrate to protect someone from physical or mental harm caused by a person who is not a family member. The order seeks to prevent further harmful behaviour by imposing conditions on the person it’s made against, known as the respondent. These conditions regulate how the respondent must behave toward the applicant or any protected persons, ensuring safety and well-being.
- The applicant is the person seeking protection.
- The respondent is the person the order is made against and must comply with the conditions imposed by the court.
Difference Between a Family Violence Intervention Order and a Personal Safety Intervention Order:
The key distinction between these orders lies in the relationship between the parties:
- Family Violence Intervention Orders (FVIO) apply when the parties are family members or in a domestic relationship. These orders are designed to protect family members from violence, threats, or abuse by other family members.
- Personal Safety Intervention Orders (PSIO) apply when the parties are not related. These orders protect against behaviours such as stalking, harassment, or other harmful conduct between acquaintances, neighbours, or strangers.
While both orders aim to protect individuals from harm, family violence cases often carry more serious consequences, particularly for breaches of an FVIO, reflecting the heightened concern for domestic abuse.
How to Apply for a Personal Safety Intervention Order:
There are two ways to initiate an application for a PSIO:
- Police Application: The police can apply for a PSIO on your behalf if they believe you need protection.
- Individual Application: You can apply directly by filing the necessary paperwork at your local Magistrates’ Court.
Steps for filing an application:
Section 34 of the PSIO Act deals with how applications are made and heard:
- You will typically need to make an appointment with a Court Registrar. They will help you complete the application form and ensure that all required information is provided.
- After filing, your matter will be listed before a Magistrate, who will determine whether to issue an interim order.
The court can issue an interim order if satisfied, on the balance of probabilities, that you or your property needs immediate protection. This interim order holds the same legal force as a full order and remains in effect until the final hearing.
What is an Interim Intervention Order?
Section 35 of the PSIO Act sets out the court’s power to issue interim intervention orders. An interim intervention order is a temporary protective measure put in place by a Magistrate to ensure the safety of the affected person or preserve their property while the court is deciding whether to grant a final intervention order. It serves as an immediate solution to address potential risks during the period before the final hearing. An interim order is made after an application is lodged with the Magistrates’ Court, and the Magistrate considers the evidence provided by the applicant.
What is a Final Intervention Order?
A final intervention order is a long-term protective order issued by a Magistrate in the Magistrates’ Court, intended to last for a specified period. While the parties involved can discuss the duration of the order, the final decision on its length is made by the court. Section 77 of the PSIO Act outlines the factors a Magistrate must consider when determining how long the final order will remain in effect.
Section 77 - Court may specify the period for which an order is in force:
- The court can specify the duration of a final order.
- In deciding the length of the order, the court must consider: (a) The applicant’s assessment of the risk posed by the respondent, including the level and duration of that risk. (b) If the applicant is not the protected person, the views of the protected person, including their own assessment of the level and duration of the risk.
- The court may also consider any concerns raised by the respondent that are relevant to the length of the order.
Difference Between Interim and Final Intervention Orders:
- Purpose: An interim order is a temporary solution to provide protection until a final decision is made, whereas a final order is a long-term or permanent resolution made after a full hearing.
- Duration: Interim orders last only until the next court hearing or until a final order is made. Final orders are in force for a longer, specified period decided by the court.
- Conditions for Issuance: Interim orders are issued based on immediate safety concerns, whereas final orders require a more thorough assessment of the risk posed by the respondent and any evidence provided by both parties.
When Will the Court Impose a Personal Safety Intervention Order?
The court may impose a final Personal Safety Intervention Order if it meets the conditions set out in section 61 of the PSIO Act 2010 (PSIO Act).
To issue a final order, the court must be satisfied, on the balance of probabilities, that:
- Prohibited Behaviour:
- The respondent has committed prohibited behaviour against you and is likely to continue or repeat it; and
- The respondent’s actions would cause a reasonable person to fear for their safety; or
- The respondent has stalked you and is likely to continue or repeat this behaviour.
- Relationship Between Parties:
- You and the respondent are not family members.
- Appropriateness of the Order:
- The court deems it appropriate, based on all the circumstances of the case, to make the final order.
Prohibited behaviour includes:
- Assault
- Sexual assault
- Harassment
- Property damage or interference
- Making a serious threat
What Conditions Can Be Included in a Personal Safety Intervention Order?
Under section 67 of the PSIO Act, the court may include any conditions necessary to protect you. Some common conditions are:
- Prohibiting the respondent from committing prohibited behaviour (such as assault or harassment).
- Prohibiting the respondent from stalking you.
- Excluding the respondent from your home or place of residence.
- Restricting contact, such as preventing the respondent from approaching, calling, emailing, or messaging you, unless in the company of a police officer, mediator, or another specified person.
- Restricting the respondent from being within a certain distance of you or specific places like your home or workplace.
- Prohibiting the respondent from using others to engage in prohibited conduct on their behalf.
- Revoking or suspending any weapons approval or firearms authority held by the respondent.
Striking Out a Personal Safety Intervention Order
Personal Safety Intervention Order can be struck out, but this depends on the specific facts of the case.
Some reasons for strike out include:
- Scandalous, frivolous, or vexatious.
- Likely to prejudice, embarrass, or delay the fair hearing of the proceeding; or
- Considered an abuse of the court’s process.
Under these circumstances, the court may order the whole or part of the application to be struck out or amended.
Undertakings in Personal Safety Intervention Orders:
An undertaking is an alternative to a court order that parties may negotiate. Unlike an intervention order, an undertaking is not legally binding, meaning that a breach does not result in criminal consequences. However, if breached, the aggrieved party can return to court to reinstate the undertaking or seek a new intervention order. An undertaking is typically negotiated and signed by the parties involved.
Cross Applications in Intervention Order Matters:
A cross application is filed when a respondent to an intervention order believes there is merit in making a counterclaim against the applicant. Cross applications can encourage both parties to negotiate a reasonable outcome, often leading to either mutual withdrawal of claims or the acceptance of mutual undertakings. Whether a cross application is appropriate depends on the specifics of each case.
Extending a Personal Safety Intervention Order:
A Personal Safety Intervention Order can be extended if it is about to expire. The extension application must be made at least four weeks before the expiry date. This involves submitting an application to the local Magistrates’ Court, where a magistrate reviews the application and may issue an interim order if immediate protection is deemed necessary.
Appeals and Rehearing’s of Personal Safety Intervention Orders:
A party to a final Personal Safety Intervention Order may appeal the decision or refusal to issue an order under Section 91 of the PSIO Act 2010 (PSIO Act). However, an interim order cannot be appealed. Appeals are typically lodged with the County Court and must be filed within 30 days of the Magistrates’ Court decision. The appeal process involves a First Listing hearing, which addresses the issues and sets the date for the appeal hearing.
The County Court may:
- Confirm the order,
- Set aside the order, or
- Vary the conditions of the order.
Rehearing of Intervention Orders:
If a respondent was unaware of the original application for a Personal Safety Intervention Order, they may apply for a rehearing under Section 99 of the PSIO Act. This can occur if the application wasn’t personally served or brought to the respondent’s attention, or if exceptional circumstances justify a rehearing. The court may rehear the matter if it finds these grounds are established on a balance of probabilities.
Variation and Revocation of Personal Safety Intervention Orders:
The court has the power to vary or revoke a personal safety intervention order under Section 80 of the PSIO Act. In determining whether to grant such a request, the court considers all circumstances, including the safety of the protected person and their views on the variation or revocation.
How to Vary an Intervention Order:
Varying an intervention order without the applicant’s consent can be difficult. If the order was requested by the police, prior communication with the police is often required to gain their agreement for variation. Without consent, an application must be made in writing and leave from the court must be granted. The court will only allow variations if there has been a change in circumstances that justifies it.
Running a Contested Hearing for a Personal Safety Intervention Order:
Contested hearings for Personal Safety Intervention Orders have unique aspects outlined in the PSIO Act. These include special rules for handling multiple applications, taking evidence by affidavit or sworn statements, and the ability to close proceedings to the public or make alternative arrangements for sensitive hearings.
Costs in Personal Safety Intervention Order Proceedings:
Generally, each party in a proceeding for a Personal Safety Intervention Order bears their own costs, as per Section 111 of the PSIO Act. However, exceptions exist, such as when an application is deemed vexatious, frivolous, or made in bad faith. In these cases, the court may award costs against the applicant.
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What happens next:
If you require legal advice or assistance with a Personal Safety Intervention Order, contact MK Law for expert legal support. Our team can guide you through the application process, represent you in court, and help ensure your rights and safety are protected.
Whether you’re applying for a PSIO, contesting one, or seeking an appeal, MK Law is here to provide you with the professional advice you need. Call 1800 130 120 today for expert advice tailored to your personal circumstances.
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