If you need urgent assistance where you are experiencing domestic and family violence you should contact DV Connect at http://www.dvconnect.org/ or 1800 811 811 (24hours/7days). Counselling and assistance are also available at the Working Against Violence Support Services (WAVSS) at Logan and in the Redlands and other local services. You can contact WAVSS at http://www.wavss.org or (07) 3808 5566 (Logan) and (07) 3286 7766 (Redlands).
What is “domestic violence”?
Domestic violence has a broad definition and can range from physical or sexual assault to verbal, emotional and psychological abuse. Domestic violence can also take on other forms such as ‘financial abuse’ where one person limits access to assets or money, usually as a way of controlling the other person. Threats, coercions and other methods of control are also recognised forms of domestic violence.
What types of relationships are covered?
A domestic violence order can only be made where there is a domestic or family relationship between the parties. Examples include:
- ‘intimate personal relationship’ which includes current or former spouses or de facto partners, fiancés and a ‘couple relationship’ such as girlfriend and boyfriend, and same-sex couples;
- ‘family relationship’ such as parent and child, siblings and other relatives who are connected by blood or marriage; and
- ‘informal care relationship’ where a person is dependent on another person to help them in an activity of daily living, for example, dressing and grooming, meals and shopping and other functions of daily living.
Who can apply for a Domestic Violence Protection Order?
If you have experienced domestic violence then you can report this to Police and they may make the application for an order on your behalf. Alternatively, you can make an application yourself, without the assistance of police. You can also authorise someone to make an application on your behalf, such as a family member or friend, however, this person must be over 18 years of age.
How do I make an application for a Domestic Violence Order?
There is a specific application form to fill out. You will be referred to as the ‘Aggrieved’ or the ‘Applicant’. The other party will be referred to as the ‘Respondent’. If you are making the application yourself, you or your lawyer should complete the form and file it at your nearest Magistrates court. You can ask the court to put certain ‘conditions’ on the Order, if one is made, such as that the Respondent cannot come to your house, or place of work, or cannot contact you. When your application is filed, the court will give you a date that you (and your lawyer, if you have one) will have to appear to have the application considered in the first instance. Usually that day or within the next couple of days, and this is usually done ‘ex parte’, which is a legal term meaning ‘without the other party there’.
What happens at the first court date?
The court is always ‘closed’ when matters concerning Domestic Violence Orders are heard. This means that only the parties and their legal representatives are allowed inside the courtroom. If you do not have a lawyer the court may allow you to have a support person. The Magistrate will consider your application. If the Magistrate considers it necessary, he or she will make a ‘Temporary Protection Order’ (TPO) that will state certain conditions depending on the circumstances. For example, the TPO may require that the Respondent be of good behaviour towards the Aggrieved and not commit acts of domestic violence, or that they remain a certain distance from the Aggrieved, and where the Aggrieved lives, works or frequents. It is then the job of the police to serve your application, and the TPO (if one is made) on the Respondent. The TPO is not in effect until it is served on the Respondent. A second court date will be set.
What happens after the Respondent is served with my application?
The Respondent may be at the court this time and will be asked if he or she consents to the Domestic Violence Order being made. Sometimes the Respondent will agree to the Order being made ‘without admissions’ which means that they do not admit that there have been any acts of domestic violence, but they consent to the Order in any event. If the Respondent does not attend the court will consider making the Order final provided the Respondent has been served. Alternately, the Respondent may agree to the Order but only if certain conditions are removed. If the Applicant does not want those conditions removed, then the matter will be set down for a hearing. Otherwise, if the Respondent does not agree to consent to the Order in any terms, then the matter is set down for a hearing.
If the Order is consented to
If the Respondent consents to the Order being made, then the Magistrate will make that Order, usually to remain in place for two years, unless otherwise agreed by the parties.
If the Order is not consented to
If the Respondent does not consent to the Oder being made, or does not agree to the conditions of the Order, then the matter is set down for a hearing. If there is a TPO in place, the Magistrate will usually extend that order until the matter goes to that hearing. If there is no TPO, the Magistrate can make one, or decide not to make one and wait until the matter is decided on a final basis at the hearing. The Magistrate will make a ‘Directions Order’ that sets out certain dates. The first date will be a date by which the Applicant must file his or her own affidavit, and affidavits of any other witnesses who will give evidence at the hearing. An affidavit is a sworn written statement that is filed in court and used in court proceedings, such as hearings.
What happens at the hearing?
A hearing is where the parties bring the matter before the Magistrate and present their application and defence, and support their positions with evidence such as affidavit material and witnesses. The Magistrate will consider all of the relevant evidence and make a decision in accordance with the Domestic and Family Violence Protection Act 2012 (Qld). The Magistrate will then decide whether or not to make an Order and what conditions are to be imposed by any order made.
The Applicant will present their evidence and witnesses first. The Applicant and his or her witnesses will then be cross-examined by the Respondent. This is usually done by the Respondent’s lawyer or barrister. If the Respondent does not have legal representation then they may do this cross examination themselves. Sometimes the Applicant may be understandably upset by this, especially where they have been the victim of severe abuse. In those circumstances, the Applicant may ask the court to make different arrangements for giving evidence under cross examination. You may want to consider asking your lawyer about this.
The Respondent will then present his or her defence and put forward a case that either there have been no acts of domestic violence, or that the order is not necessary or desirable.
Who can be a witness?
You can ask other people to provide evidence for you to help you at the hearing. If someone agrees to provide evidence, then that witness must make themselves available on the day of the hearing. If the witness provides an affidavit but does not make themselves available for cross examination on the day of the hearing then the court can decide how much weight, if any, it will give to the affidavit material.
What if the Respondent breaches a Temporary Protection Order (TPO)?
If there is a TPO in place, and the Respondent has been served with that order by police, then breaching the TPO is the same as breaching an Order that has been consented to or made by the court after a hearing.
What if the Respondent breaches the Domestic Violence Order?
‘Breaching’ the Order means that the Respondent has done something that is against the terms of the Order. For example, if the Order states that the Respondent cannot approach the Aggrieved within 100 metres, and then does so, this is a breach of the Order. The Aggrieved should then report this to the Police and the Police will investigate the incident.
If the Respondent commits an act of domestic violence that is, in and of itself a criminal act, for example a physical assault, he or she will be charged for the assault and for breaching the protection order.
If the Police are satisfied that an offence and/or a breach of the orders has occurred, then they will either arrest and charge the Respondent, or serve the Respondent with a ‘Notice to Appear’ in court to answer the charge or charges. These ‘breach proceedings’ are criminal in nature and therefore heard in an open court, except in limited circumstances.
If the Respondent pleads guilty to the offence and/or the breach of the order, he or she will then be sentenced. The punishment will depend on many factors, including the seriousness of the offence and the Respondent’s criminal record. If the Respondent pleads “not guilty” to the charge or charges, the matter will go to a hearing.
What do I do if the Order is going to expire and I still want it in place?
You can apply to the court to have the Order extended. The court will extend an Order if you can show that it is necessary and desirable to do so.
Our circumstances have changed and I want to vary the Order
Sometimes parties can work things out and in those circumstances you might like to apply to the court to have the conditions of an order varied or withdrawn. If the order was made on a police application then this may be more difficult.
I am a Respondent to an application – What should I do?
It is likely that the first you will know about an application is when either the Applicant tells you, or when you are served with the application by the Police. The application and any temporary order will be explained to you. You will be advised of the next court date.
At the next court date you will have three options:
- you can seek an adjournment for the purposes of seeking legal advice, if you have not already had the opportunity to do so;
- you can consent to the Order. You can do this ‘without admissions’ which means that you do not admit that there have been any acts of domestic violence, but you consent to the Order in any event. This will end the matter before the court;
- you can choose not to consent to the order. The matter will be set down for a hearing.
If you do not attend at court, the court will consider making the Order final provided you have been served.
You should seek legal advice about the effect that a protection order has on your personal circumstances before you consent to an order.