In the context of domestic violence orders, certain definitions are very important. These terms are defined in legislation and are defined in somewhat wider terms than one would normally expect (Domestic and Family Violence Protection Act 2012).
What is Domestic Violence?
Domestic violence is when one person behaves in a way that controls or dominates another person and causes fear for their safety and wellbeing.
Domestic violence is usually a pattern of abusive and controlling behaviour taking many forms. It happens in intimate, family or informal care relationships.
Regardless of age, culture, sexuality or gender identity, you have the right to live without fear.
Domestic violence includes a wide range of behaviours that control or dominate someone or cause them to fear for their personal safety or wellbeing. These behaviours may include:
physical or sexual abuse—punching, hitting, choking, or threatening to punch or hit, forcing a person to participate in sexual acts, damaging someone’s property or threatening to damage property, including hurting or threatening to hurt pets
emotional or psychological abuse—stalking, repeated text messaging, making insulting comments, calling someone names, blackmailing or extorting, preventing contact with family and/or friends, controlling someone’s appearance, putting them down, threatening to expose their sexual orientation
economic abuse—denying, withholding, controlling or misusing money or property, or threatening to do so
threatening behaviour—saying things or acting in a way to make someone feel afraid, threatening to commit suicide or self-harm, stalking
coercive behaviour—forcing, intimidating or manipulating a person to do things they don’t want to do, such as sign a contract (e.g. for a loan) or a legal document giving another person power over their affairs (e.g. power of attorney).
Domestic violence extends to children seeing violence, like their parent being hurt, being called names, things being broken or police arriving.
Who is a Spouse?
A 'spouse' is defined to mean:
either one of a male or female who are or have been married to each other;
either one of the biological parents of a child, whether or not they are or have been married or are residing or have resided together; or
either one of two persons, whether they are the same or the opposite sex, who are residing or who have resided together as a couple.
What is an Associate?
An 'associate' is a person whom the aggrieved spouse regards as an associate or who regards himself or herself as an associate of the aggrieved spouse. However, it must be reasonable to regard that person as an associate. Examples of associates are :
a person who works at the same place as the aggrieved spouse;
a person who resides at the same place as the aggrieved spouse; or
a person who belongs to the same church, club, or other type of association as the aggrieved spouse.
What is a Relative?
A 'relative' is a person whom the aggrieved spouse regards as a relative or who regards himself or herself as a relative of the aggrieved spouse. However, it must be reasonable to regard that person as a relative. It must also be borne in mind that some people, such as Indigenous people, or people with particular religious beliefs, have wider concepts as to who is a relative.
WHEN CAN A COURT MAKE A DOMESTIC VIOLENCE ORDER?
Domestic violence matters are usually dealt with by a magistrate in a Magistrates Court. If the respondent spouse wishes to object to a domestic violence order being made, the matter will proceed to a hearing in the Magistrates Court. For the magistrate to make a domestic violence order, he or she must be satisfied of the following:
That the application for the order has been made by an aggrieved spouse, an authorised person, or a police officer
That the aggrieved spouse and the respondent spouse were living in a relationship, such that they could correctly be defined as spouses
That the respondent spouse has committed an act of domestic violence against the aggrieved spouse
That the respondent spouse is likely to commit an act of domestic violence again, or, if the prior act of domestic violence was a threat, the respondent spouse is likely to carry out the threat.
Domestic Violence Orders can be made in other proceedings
If a person is before a court and pleads guilty to, or is found guilty of, an offence that involves domestic violence, then the court may make a domestic violence order against the person at the time of imposing the conviction and penalty for the offence. The court may also vary a domestic violence order which is already in existence.
CONDITIONS OF A DOMESTIC VIOLENCE ORDER
There are a number of standard conditions that are contained in a domestic violence order. Furthermore, there are a number of optional conditions that a magistrate can impose depending upon the circumstances of the case.
The following are standard conditions for a domestic violence order:
the respondent spouse must be of good behaviour towards the aggrieved spouse and not commit acts of domestic violence;
the respondent spouse must be of good behaviour towards any aggrieved person named in the order and must not commit an act of domestic violence against the aggrieved person;
the respondent spouse must not possess a weapon for the duration of the order (when making the order the court must also revoke all weapons licences issued in the name of, or in relation to, the respondent spouse).
A magistrate can also impose any of the following conditions, if he or she thinks it necessary in the interests of the aggrieved spouse, any aggrieved person, and the respondent spouse:
prohibiting specific behaviour;
prohibiting the respondent spouse from remaining in, entering or approaching certain premises;
prohibiting the respondent spouse from approaching, or attempting to approach, the aggrieved spouse;
prohibiting the respondent spouse from contacting, attempting to contact or asking someone else to contact the aggrieved spouse or an aggrieved person;
prohibiting the respondent spouse from locating, attempting to locate or asking someone else to locate the aggrieved spouse or an aggrieved person;
prohibiting specific conduct of the respondent spouse towards a child of the aggrieved spouse.
A condition may also be imposed requiring the respondent spouse to return property to the aggrieved spouse, or to allow the aggrieved spouse to access property, or to allow the aggrieved spouse to recover property.
MAKING AN APPLICATION FOR A DOMESTIC VIOLENCE ORDER
There are two main ways that an application for a domestic violence order can be made.
An Application by Police
A police officer may make an application for a domestic violence order if that police officer reasonably believes that there has been an act of domestic violence committed upon an aggrieved spouse and that there is sufficient reason for the officer to take action. Generally, police officers make applications for domestic violence orders when they have been called to a domestic dispute and where other offences have been committed such as an assault or an act of wilful damage by the respondent spouse.
Making Your Own Protection Application
If you apply yourself, you can choose from these options:
Most Magistrates Courts have JPs, so you can probably sign the statutory declaration and file the application in one visit.
THE PROCEDURE FOR A DOMESTIC VIOLENCE APPLICATION
If you’re experiencing domestic violence, you can apply for a domestic violence order (DVO). The DVO sets out conditions that must be obeyed by the person who has committed the violence (‘the respondent’).
Note: The application process for a full protection order can take several weeks. If you’re in danger currently, you can apply for a temporary protection order until the full order is finalised.
You can either:
have a police officer, lawyer, friend or family member apply for you
apply for a domestic violence order yourself.
Regardless of who applies, the court makes an order with the conditions it considers appropriate and the police enforce the order in the same way.
If the Application is Urgent
There may be occasions where a domestic violence order needs to be obtained urgently. For example, the respondent spouse may have made serious threats, and there is a high probability that his or her threats will be carried out. In this instance, the aggrieved spouse should tell the Court Registry staff that the application is urgent. The Registry staff will then organise for the matter to be considered by a magistrate at the first available opportunity.
This may even be on the same day that the application is filed.
In such a case, the police will not have had an opportunity to serve the application on the respondent spouse. Accordingly, the respondent spouse will not appear before the court.
If a police officer is making an application and it is an urgent application, then the application can be made to a magistrate by telephone or facsimile. This option is not available to members of the public who wish to apply for an order. The option of making an application by telephone or facsimile is often an advantage to people who live in remote areas and who are not easily able to attend at a Magistrates Court.
If the Application is not Urgent
When the application is filed, the matter will be allocated a date for mention in court. The aggrieved spouse will need to attend court on that date. If the respondent spouse does not attend court, then the magistrate, if satisfied that the respondent spouse has been properly served with the application, will make a protection order in their absence. Remember, it is the police who are responsible for serving the application and they will ensure that the court receives proof that the application was served.
If the respondent spouse attends court, he or she may indicate that they consent to the protection order being made. If this is the case, then the magistrate will make the order on that day. Both the aggrieved spouse and the respondent spouse will receive copies of the order.
The respondent spouse may indicate that he or she is willing to consent to the order being made, but without admissions. This means that he or she is not willing to admit the allegations of domestic violence but, does not oppose a domestic violence order being made. In the majority of cases, an aggrieved spouse will not be disadvantaged if the respondent spouse consents to the order being made, without admissions. The protection order that is made by the magistrate will not differ in any way.
A domestic violence order remains in force for five (5) years unless reasons can be given as to why the period should be shorter.
When the Respondent Spouse Objects to the Order Being Made
If, on the first return date of the application, the respondent spouse indicates that he or she objects to the order being made, the matter will be adjourned for a trial (otherwise known as a hearing). The trial date can be a number of months from the first return date.
In most circumstances, the magistrate will make a temporary domestic violence order which will remain in force until the trial date. A temporary domestic violence order is exactly the same as a normal domestic violence order, except that it only remains in force until the next court date.
ASSOCIATES, RELATIVES AND ASSOCIATED DOMESTIC VIOLENCE
If a domestic violence order is made by a magistrate, then the aggrieved spouse will receive the benefit of that order. However, it is possible to have other people included on the order. If this is done, the other people can also obtain a benefit from the domestic violence order.
It is important to note that an application for a domestic violence order must be made by an aggrieved spouse (or a police officer or authorised person, on behalf of the aggrieved spouse), who has been the victim of domestic violence. An application cannot succeed if it is made by an aggrieved spouse as a result of an act which constitutes domestic violence, but which was committed upon another person.
A domestic violence order can also protect a relative or associate of the aggrieved spouse. If the aggrieved spouse wishes to have a relative or associate protected by a domestic violence order, then they should list these people's names, along with the reasons for requesting protection of these relatives or associates on the application form.
BREACHING A DOMESTIC VIOLENCE ORDER
If a person has a domestic violence order made against them, it does not constitute a criminal conviction. However, a breach of the order, or any conditions of the order, constitutes a criminal offence. It is irrelevant whether the order is temporary or final and courts deal with breaches of domestic violence orders very seriously.
It is a criminal offence to breach a Protection Order under section 177 of the Domestic and Family Violence Protection Act 2012. This may lead to a criminal record.
Domestic Violence Orders in Queensland are initially a civil law order between two people. This means that having a Protection Order made against you in Queensland does not automatically result in a criminal record.
If a respondent spouse breaches a domestic violence order, then an aggrieved spouse, provided they want the order enforced, should contact the police to make a formal complaint. The police will then investigate the matter and, if they believe a breach of the order has occurred, they will charge the respondent spouse.
If you are charged with breaching a Protection or Domestic Violence Order, you will need to appear before a court.
A defendant who breaches a Domestic Violence or Protection Order in Queensland is liable to a maximum of three years’ imprisonment or a fine up to 120 penalty units ($14,136).
If you have previously been convicted of a domestic violence offence, this penalty is increased to five years’ imprisonment or a fine up to 240 penalty units ($28, 272).
Alternatively, a court may order that you undertake community service or be placed on a good behaviour bond. This punishment is up to the court to decide and the type of penalties the court imposes is determined by how serious the offence was as well as other circumstances.
A breach of a Domestic Violence Order may also result in a criminal record.
REGISTRATION OF INTERSTATE ORDERS AND REVOCATION AND VARIATION OF ORDERS
Registration of Interstate Orders
The law that governs domestic violence matters in Queensland is different to laws which govern domestic violence in other states of Australia. However, all states in Australia have laws which allow domestic violence orders to be made.
New laws have been introduced in each state and territory to improve the protection of domestic and family violence victims.
From 25 November 2017 domestic violence orders (DVOs) issued in one state or territory will apply and be enforceable in all states and territories in Australia.
Prior to 25 November 2017, if you are planning to travel or move to a state or territory different to the one where your order was issued, you can have your order “declared” a national DVO. This means it can be enforced in all states and territories in Australia.
If you are planning to travel or move interstate and want to vary the conditions, named persons or term of your DVO, you can do this in Queensland by making an application to a Magistrates Court using one of the following forms:
Application for Revocation or Variation of Domestic Violence Order
If your situation changes, you can apply to make changes to the order if your name appears on a current Queensland domestic violence order (temporary protection order or a protection order). The law calls this an application to vary the protection order.
You can ask the court to consider changing any domestic violence order, even if a police officer made the original application to the court.
If the court decides to make the changes you are asking for, a varied order will be issued. If the court does not agree to the changes you are asking for, the current domestic violence order will remain in place.
Changes to current orders can include:
adding or removing conditions
adding or removing named people (e.g. children, relatives, and associates)
extending or reducing the time the order is in force.
If you are the aggrieved or a named person, the court must consider whether the requested changes will reduce your and/or a named person’s safety, protection or wellbeing. If you are the respondent, consideration will be given to how the requested changes will affect the aggrieved or a named person.
If you are the aggrieved, respondent, applicant or a named person (e.g. relative or associate named on the order), you can apply to make changes to the current domestic violence order.
If you are the aggrieved person, you can authorise someone else to apply to change the domestic violence order on your behalf.
If you are a named person, you can only apply to change the parts of the domestic violence order that apply to you. For example, you may want the court to change or remove conditions that include you, or you may want the order to stop applying to you.