A domestic violence order is an order made by the court that includes conditions that restrain, restrict and prohibit the behaviour of the respondent. The purpose of the domestic violence order is to prevent further domestic violence.
In the Domestic and Family Violence Protection Act 2012 a domestic violence order means either a protection order or a temporary protection order.
Protection order – An order made by a magistrate when they make a final decision.
Temporary protection order – An order made by a magistrate that only lasts for a short time.
A domestic violence order can protect the aggrieved (victim), relatives and associates of the aggrieved, and children of the aggrieved or who usually live with the aggrieved who are named in the order.
A domestic violence order is a civil order and not a criminal matter. However, a respondent (perpetrator) who breaches or disobeys the order commits a criminal offence.
Domestic violence orders can last up to two years. In special circumstances the domestic violence order can be extended for a period longer than two years.
The aggrieved is the person (victim) for whose benefit the domestic violence order is made.
The respondent is the person (perpetrator) against who the domestic violence order is made.
The Act allows the court to make a protection order against a respondent if the court is satisfied that:
An application for a domestic violence order may be made by:
a person acting under another Act for the aggrieved (such as a guardian under the Guardianship and. Administration Act 2000 or a personal attorney under an enduring power of attorney).
Application forms for protection orders are available from most Magistrate Courts. Forms are also available on-line from the Queensland Courts website. The applicant needs to fill in the form and lodge it at their local courthouse. Alternatively, someone who is authorised in writing can also lodge it with the court. Domestic and family violence services, particularly court support services, can also be able to assist with applying for an order.
When the application is lodged, the applicant will be given a first court hearing date (called the mention).
The police will give the respondent (the person against who the order could be made) a copy of the application.
If both the applicant and the respondent are in court at the mention and agree to the order, the magistrate may make a protection order.
If the two parties do not agree the magistrate may make a temporary protection order and/or set a date for the hearing.
If the respondent is not present at the mention the court may make a final domestic violence order. This can only happen if the police have served the respondent with the application.
If the respondent is not present and has not been served with a copy of the application and a summons the court may adjourn the case and make another date for the mention. If this happens the court may also make a temporary protection order.
A hearing may occur if the respondent and aggrieved do not agree about the application for a domestic violence order. At the hearing the magistrate will listen to evidence from the aggrieved, the respondent and any relevant witnesses.
The court will then make a decision about whether a domestic violence order should be made. As the matter is a civil matter, the decision making threshold is lower than that of a criminal nature and is based on the 'balance of probabilities' rather than 'beyond a reasonable doubt'.
A protection order may be made for a period of up to two years. In certain circumstances it may be made for longer.
The two standard conditions on all domestic violence orders are that the respondent must be:
Under the Weapons Act 1990 a person may not possess a weapon, or a weapons licence, if a domestic violence order is made against them.
The Act allows the court to include information about any weapons or weapons licences held by the respondent on the domestic violence order. The order will inform respondents that their licences have been revoked and provide information about the surrender of their weapons and weapons licences.
In addition to the standard conditions, the court can impose extra conditions to help protect the aggrieved, their relatives and associates from further domestic and family violence.
These conditions may include stopping the respondent from:
A court may also order that the respondent:
A domestic violence order does not automatically make an order preventing the respondent from living with the aggrieved. The aggrieved must request the court to make this specific condition or the magistrate, at their own discretion, may make this a condition of the order if appropriate.
The police play an important role in responding to domestic and family violence. Some of the actions police can take include:
Children of the aggrieved or who usually live with the aggrieved may be named on a domestic violence order but the aggrieved must tell the court of any Family Court Orders or Family Court Order applications. The magistrate must consider any Family Court Orders and consider whether contact between a child and the aggrieved or the respondent is relevant in making a domestic violence order.
The relatives or associates of the aggrieved can be named on the domestic violence order if the court is satisfied that naming the relative or associate in the order is necessary or desirable to protect the relative or associate from associated domestic violence.
Being named on the order provides the relatives or associates of the aggrieved with the same standard of protection as granted to the aggrieved.
Children and young people under 18 may be the respondent or the aggrieved in a domestic violence order in certain situations. Under the age of 18, a person experiencing domestic and family violence can apply for a domestic violence order when they are in an 'intimate personal relationship' or an 'informal care relationship'. However, they cannot be the respondent or aggrieved under the definition of a 'family relationship' in the Act.
If the young person is under 16 and is the aggrieved or the respondent in a domestic violence order all documents including applications and protection orders must be given to the child's parent as well as the child.
The Act allows the court to adjourn a domestic violence application hearing if the child or young person has not had reasonable opportunity to obtain legal representation. The court will not adjourn the hearing if the child or young person has made an informed decision to forgo legal representation or if the child is an aggrieved and has a police officer, solicitor or an authorised person representing them.
Children and young people under 18 can not apply for a domestic violence order against their parent/s as this is considered a child protection issue and should be dealt with under the Child Protection Act 1999.
Parents can not apply for domestic violence orders against their children who are under 18. However, if the child is over 18 then the parents may apply for a domestic violence order. For example, an older parent may apply for a domestic violence order against their adult son or daughter.
If the aggrieved is in danger and needs protection urgently they should contact the police. If deemed necessary or desirable to protect the aggrieved from further domestic violence, the police can issue a police protection notice. A police protection notice places similar conditions on the respondent as a domestic violence order. If the police issue a police protection notice the notice is then lodged at the court and becomes an application for a domestic violence order. The police may also be able to apply to the court for an urgent temporary protection order.
When the aggrieved is lodging the application for a domestic violence order at a magistrates Court they can also ask the Clerk of the Court for a hearing so that an urgent temporary protection order may be made.
The court will only make an urgent temporary protection order without the respondent being served with a copy of the application if it is necessary to protect the aggrieved or another person named in the application.
The applicant for a domestic violence order may be able to have a person in court with them for assistance and support, this is a decision of the magistrate. The support person can be a friend, relative or community worker. Members of the public are not allowed inside the court during a domestic violence hearing.
Details about domestic violence proceedings that might identify the people involved can not usually be published. Published means in newspapers, magazines, or broadcast on the radio or television or by other means that releases information to the general public.
The Act states that the court has a duty to explain the domestic violence order to the respondent and the aggrieved if they are in court when the order is made.
A Clerk of the Court, an interpreter, court support worker or a local community justice group or elders may explain the order, verbally or by the use of written notes.
The respondent must be given a copy of the order. The Police will give the respondent a copy of the order if the respondent was not present in court when the order was made.
If a respondent is aware of the domestic violence order and disobeys it, the respondent may be charged with breaching the domestic violence order.
The breaching of a domestic violence order is a criminal offence and may result in serious penalties, including a maximum period of three years imprisonment.
The aggrieved, respondent, an authorised person or a police officer can apply to change or revoke a domestic violence order including changing the end date so that the order no longer exists. The application needs to be lodged at a Magistrates Court.
The respondent or aggrieved must receive a copy of the varied domestic violence order.
The magistrate must be convinced that the aggrieved is not being pressured or threatened by the respondent before they will reduce the conditions or end a domestic violence order.
If the aggrieved or respondent were in court and one or both parties do not agree with the magistrate's decision they may appeal to the District Court within 28 days of the magistrate's decision.
If the respondent was not in court for the magistrate's decision they have 28 days from the time the order was served on or given to them to lodge an appeal.
It is important that the aggrieved registers their domestic violence order with the Magistrates Court every time they move to a new State, Territory or New Zealand. A domestic violence order made in any Australian State or Territory or in New Zealand provides the same protection for the aggrieved after it has been registered with the Magistrates Court in the area that the aggrieved has moved to. It does not cost anything to register an interstate order. The aggrieved need not notify the respondent of an application for the registration or variation or revocation of an interstate order.
The aggrieved must provide written consent to the court before the respondent can be told about the interstate registration or the new address of the aggrieved.
On application, the Magistrates Court can vary or stop an interstate order once it has been registered in that State, Territory or in New Zealand.
If the two parties to a domestic violence order share a rented house or flat, they can ask the Queensland Civil and Administration Tribunal (QCAT) to make an order about the rented premises if domestic violence has occurred.
QCAT can make orders including:
To get an order about a tenancy, the aggrieved needs to complete a separate application form under the Residential Tenancies Act 1994. This can be done at the same time as an application for a domestic violence order is made in the Magistrates Court. The magistrate needs to be asked to make a decision about the tenancy at the same time as they make a decision about a domestic violence order.
For more information, contact the Residential Tenancies Authority.
Confidential support and advice for women affected by domestic violence is available by phoning DVConnect Womensline on 1800 811 811 (24 hours, 7 days a week).
Note: This number is not recorded on your phone bill.