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.
What is Domestic Violence?
'Domestic violence' is defined as any of the following acts that a person has committed against his or her spouse:
wilful damage to the spouse's property;
intimidation or harassment of the spouse;
indecent behaviour to the spouse without consent; or
a threat to commit any of the acts mentioned above.
A spouse need not personally commit the act or threaten to commit it. If an act of domestic violence is committed by person B at the prompting of person A,then person A also commits an act of domestic violence.
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
An application for a protection order can be made at any Magistrates Court.There is a specific form that needs to be completed (Form DV1). This form can be obtained at the Magistrates Court Registry.
The application has to be completed and signed. Your signature must be witnessed by a Justice of the Peace. You will normally be able to find a Justice of the Peace on site working at the Magistrates Court. The information provided in the application must be correct as it is a criminal offence to put in information that you know to be untruthful.
THE PROCEDURE FOR A DOMESTIC VIOLENCE APPLICATION
There are a number of scenarios which may occur in relation to the making of a domestic violence application. These scenarios are discussed below.
The first step is making the actual application. If a police officer does not make the application then the aggrieved spouse will have to attend at a Magistrates Court Registry and complete an application.
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 protection order will usually be made for a duration of two (2) years. It is possible, after the making of a protection order, for an application to be made to a magistrate to have the order varied or revoked.
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.
The maximum penalty for breaching a domestic violence order is $3,000.00 or one (1) year's imprisonment. Generally, people who are convicted of a breach of a domestic violence order for the first time receive fines unless the breach constitutes an act of violence, or another serious act against the aggrieved spouse. However, people convicted of their second or third breach are often imprisoned.
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.
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.
However, some states call domestic violence orders different things. For example, domestic violence orders are called apprehended violence orders in New South Wales.
If an order has been obtained in another state, it is possible to register the interstate order with a Queensland Magistrates Court. A specific form, which can be obtained from any Magistrates Court, must be completed. The Magistrates Court must be satisfied that there is an interstate order in force by obtaining a certified copy of it from the relevant court in that state.
Application for Revocation or Variation of Domestic Violence Order
An application may be made to a court for the revocation or variation of a domestic violence order by any of the following people:
the aggrieved spouse;
the respondent spouse;
a person authorised by the aggrieved spouse;
a police officer who reasonably believes that it is for the benefit of the aggrieved spouse and there is sufficient reason for taking the action.
The application is to be made by first completing a form which can be obtained from any Magistrates Court. The applicant then files a copy of it in the Magistrates Court Registry.
This Information Outline is available courtesy of AussieLegal's online legal information and law firm referral service.
If you want further information, we recommend contacting the law firm of Ryan& Bosscher Lawyers who specialize in this area of law. They are located at 3rd floor, Bank of NSW Chambers, 33 Queen Street, Brisbane 4000,or call them on (07) 3229 3166.
Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become the premier Criminal Defence firm in Queensland, committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.