Domestic Violence
Unfortunately, all too often the breakdown of a relationship can be associated with issues of domestic violence. If you find yourself in this situation and you or your children have been threatened or at risk of harm, you should call police for assistance.
Where you are not at immediate risk of harm, we can assist you take steps to protect yourself or your children from domestic violence in the future by applying for a protection order.
What is domestic violence?
People are often of the mistaken belief that for conduct to constitute domestic violence it must be physically or sexually abusive. However, Queensland law recognises that domestic violence is not limited to just physical forms of violence, but rather can exist in many forms. The Domestic and Family Violence Protection Act 2012 (Qld) ( the Act ) confirms that conduct that is emotionally or psychologically abusive, economically abusive, threatening, coercive, controls or dominates another person, or causes another person to fear for their safety or wellbeing or that of someone else, can all be conduct that can amount to domestic violence.
Who can apply for a domestic violence order?
The person who is to be protected by a domestic violence order is referred to as the aggrieved. In order to apply for the benefit of a protection order, the aggrieved must be able to demonstrate that they are, or have been, in a ‘relevant relationship’ with the person who they are seeking protection from.
A ‘relevant relationship’ is not limited to persons who are married or have been living a de facto relationship together. Instead, a ‘relevant relationship’ is defined to include ‘an intimate personal relationship’, a ‘family relationship’ and an ‘informal care relationship’.
An ‘intimate personal relationship’ includes a spousal relationship, an engagement relationship, and a couple relationship. The Act confirms that this type of relationship does not be current or ongoing at the time an application for a protection order is made.
A ‘family relationship’ exists where one person would ordinarily be understood to be, or to have been, connected to the other person by blood or marriage.
An ‘informal care arrangement’ exists where one person is or was dependant on the other (i.e. a family carer) for help in an activity of daily living. The Act specifies that this type of arrangement does not apply in a parent-child relationship, nor where the care was provided pursuant to a commercial arrangement.
When will a domestic violence order be made?
Before a Court will grant an application for a protection order on a final basis, it must be satisfied on the balance of probabilities of the following matters:
- A ‘relevant relationship’ exists or existed between the aggrieved and the person against whom the order is being sought;
- The person against whom the order is sought has committed at least one act of domestic violence towards the aggrieved; and
- A protection order is ‘necessary or desirable’ to protect aggrieved.
When is a protection order ‘necessary or desirable’?
In deciding whether a protection order is necessary or desirable, the Court must have regard to the principles by which the Act is to be administered. They include that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.
In applying this principle, the Courts have confirmed that the focus must be on the issue of protecting an aggrieved person from future domestic violence. This requires the court to consider the evidence and determine the prospect of domestic violence in the future and the nature of that domestic violence.
The mere fact that an aggrieved is concerned that domestic violence may happen in the future, is not sufficient to provide a basis for a protection order being made. The evidence must be capable of supporting a finding that there is such a risk. Whether such a risk exists will depend on the individual circumstances of the case. However, matters such as evidence of past domestic violence and conduct, the parties’ future personal and familial relationships, their places or residence and work, the size of the community in which they reside and the opportunities for direct and indirect contact and future communication, for example, in relation to children, are all matters the Court may take into consideration.
How long will a domestic violence protection order remain in force?
Unless there are circumstances which convince a Court that a short period is warranted, a domestic violence protection order will usually remain in place for a period of 5 years.
When will a temporary protection order be made?
If a person against whom an application is made for a protection order contests that application, then there is a process that the Court must adopt to decide whether that order should be made. This will usually require the aggrieved and the respondent to the application to file their evidence, usually in the form of a written statement, in the Court. The matter may then be listed for a hearing before a Magistrate, where the parties can be questioned about the circumstances relied upon to justify the making of a protection order. The filing of evidence and listing the matter for a final hearing may take a number of months.
Until the matter can be finalised, the Court has the power to order that a temporary protection order be made. However, before a Court can make a temporary order it must be satisfied that a ‘relevant relationship’ exists and that an act of domestic violence has been committed against the aggrieved person.
Due to the temporary nature of the protection order, an application for a temporary order need only be supported by the evidence that ‘the court considers sufficient and appropriate’, which is a lesser evidentiary burden than that required for a final order.
What conditions will be included in a protection order?
When making a domestic violence protection order, the Court must include a condition that the person against whom the order is made must be of good behaviour toward the aggrieved person and not commit domestic violence against the aggrieved.
Where there are other named persons on the order, such as a partner of the aggrieved or a child, the Court must also make similar orders protecting them.
The Court’s powers, however, extend much further than just ordering a respondent to a be of good behaviour and not commit domestic violence, and often protection orders will include a prohibition on a respondent:
- engaging in specific conduct that would constitute domestic violence towards the aggrieved
- approaching, or attempting to approach, the aggrieved or a named person, including stating in the order a distance within which an approach is prohibited; or
- contacting, attempting to contact or asking someone else to contact the aggrieved or a named person, including, for example, if the aggrieved or named person has taken shelter at a refuge; or
- locating, attempting to locate or asking someone else to locate the aggrieved or a named person if the aggrieved’s or named person’s whereabouts are not known to the respondent
Can a protection order direct a respondent to leave the home?
The Act specifically provides that a Court has power to direct a respondent not to remain at, approach, or otherwise approach a stated premises. This type of condition in a protection order is often referred to as an ‘Ouster Condition’. The Court can impose an Ouster Condition irrespective of whether the respondent to the protection order has a legal or equitable interest in the premises. This includes being named as a tenant on a residential lease or being a registered proprietor on the title of the premises.
Tailored expert legal advice
If you are considering applying, or have applied, for a protection order, then obtaining early legal advice may help ensure that you are successful in that application. At Frigo James Legal Group our experienced domestic violence lawyers are able to advise you in relation to all aspects of applications for protection orders. Contact today our experienced family lawyers at Frigo James Legal Mr Andrew James on 07 5621 3799 or email us at info@fjlegal.com.au for experienced legal advice in relation to your matter.
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