DOMESTIC VIOLENCE

The Domestic Violence QLD Act is Handled by a Brisbane Domestic Violence Lawyer

What is domestic violence?

While domestic violence can look differently for each family, it often includes a pattern of behaviours intended to control or generate fear by one person (the perpetrator or respondent) against another (the victim or aggrieved). This behaviour can manifest in ways that are physical or non-physical.

The different forms of abuse can look like:

• • Physical abuse to a person: hitting, punching, shoving slapping, choking, using or pointing weapon;
  • Physical damage to property;
  • Psychological abuse such as emotional or verbal abuse, insults, offensive language and constant put-downs;
  • Social abuse such as preventing the victim from leaving the home, deliberate geographical isolation, controlling the use of the phone and restricting contact with family and friends;
  • Financial abuse such as restricting access to money or providing insufficient funds for necessities;
  • Sexual abuse such as non-consensual intercourse or sexual acts, including child sexual abuse where a parent or care giver involves a child in sexual activity; 
  • Technology-facilitated abuse such as threatening or insulting text messages; or
  • Spiritual abuse such as not allowing a person to practise their religious or cultural beliefs.[1]

It is important to acknowledge that coercive control falls under the umbrella of domestic violence and describes a pattern of behaviours aimed at controlling an intimate partner and/or family members.[2] The effects of coercive control can be devastating and can include the loss of the victim’s autonomy, freedom and sense of trust for others.[3]

If you have experienced any of the above behaviours – 

If you have experienced any of the above, we strongly advise that you contact the police or seek legal help as soon as possible. From there, it is likely that a protection order can be made by the Magistrates Court to protect you and your loved ones.

By successfully applying for a domestic violence order, the courts can enforce such an order to ensure that the respondent is legally bound to refrain from conducting any of the behaviours listed above against the aggrieved or a named person. 

What is a domestic violence order?

Under the Domestic and Family Violence Protection Act 2012 (Qld) (‘the DFVP Act’),  a domestic violence order is a protection order made by the court to try and stop threats or acts of domestic violence against the person experiencing the abuse. The central principles that guide the court when making a protection order include the safety, protection and wellbeing of people who fear or experience domestic violence, including children.[4] The court refers to this class of people as the ‘aggrieved’. 

Who can apply for a protection order?

The following classes of people can apply for a protection order:[5]

• The aggrieved (the person who has experienced the DV); 
• A person who is authorised by the aggrieved to apply for an order, such as a domestic violence service worker; or
• A police officer.[6]

If the police are called to a home or location where they believe that domestic violence has occurred, the police can apply for an order to protection you and your loved ones. 

Also note that a person under 18 can be either an applicant or respondent to a protection order if they are in an intimate personal relationship or an informal care relationship, but not a family relationship.[7] Referrals to other agencies, including Family and Child Connect, a Family Wellbeing Service or Child Safety should be considered whereby the child is unable to apply for a DV order against their parents or other family members. Useful information can be found via: Department of Child Safety, Seniors and Disability Services (dcssds.qld.gov.au)

How to apply for a protection order – 

Step 1: fill in the From DV1

An application for a protection order (Form DV1) can be located from the local Magistrates Court, police station or online from the website: https://www.courts.qld.gov.au/going-to-court/domestic-violence. 

Make sure the statutory declaration is signed front of a Justice of the Peace (JP) or Commissioner for Declarations (CDec). Most Magistrate courts have JPs available who can witness signatures. 

Step 2: include as much information of the domestic violence as possible

 It is helpful to the court to include as much detail as possible, which may include:

• • • The type of violence;
    • When it happened or how often it happened;
    • Where it happened;
    • What happened;
    • How it happened;
    • Who was there; and
    • Any injuries suffered.

It is important to try and attach the following documents as forms of evidence to the application:

• • •  Photos of any injuries taken at the time the domestic violence happened;
    • Photos of any injuries taken later when they are more visible;
    • Statements from people who saw or heard the domestic violence or who are aware of the domestic violence over a period of time;
    • Diary entries made about the domestic violence;
    • Doctors’ reports;
    • Other court orders, e.g. other domestic violence orders or family law orders;
    • Reports from any counsellors;
    • Phone call logs of calls made to a phone by the respondent; and
    • All text and voicemail messages, emails, letters and social media entries (printed out with dates).

To place yourself in the position of a court, below is a summary of what factors the court considers under the DVFP Act when granting a protection order: 

1. You are in a relationship covered by the DFVP Act

The relationship must fall within any of the following categories:[9]

• • • • An intimate, personal relationship. This means a current or former spouse, a parent of a child together, an engaged couple or couples who are living or have lived together;[10]
      • A family relationship. This means that the aggrieved is related to the respondent by blood or marriage;[11] or
      • An informal care relationship. This can exist where one person is dependent on the other person for aspects of daily living but not applicable whereby the carer is paid (excluding government payments) by the applicant.[12]

2. Domestic violence has occurred

Domestic violence means behaviour that:[14]

1. 1. 1. 1. Is physically or sexually abusive; 
         2. Is emotionally or psychologically abusive; 
         3. Is economically abusive; or 
         4. Is threatening; 
         5. Is coercive; or 
         6. In any other way controls or dominates the aggrieved and causes the aggrieved to fear for their safety or wellbeing or that of someone else.

The behaviours listed above:

• • • • May occur over a period of time; 
      • May be more than 1 act, or a series of acts, that when considered cumulatively, constitutes DV; and
      • Is to be considered in the context of the relationship as a whole.[15]

Note that a person who counsels or encourages someone else to engage in the above behaviour that is regarded to have engaged in domestic violence.[16]

3. The protection order is necessary or desirable to protect the aggrieved from domestic violence

Here, the court will look at the need for protection against the risk of future domestic violence, provided that the DV is real and continuing.

This assessment will depend on the particular facts of the case. The court will examine factors such as:

• • • • Evidence of past domestic violence and conduct;
      • Genuine remorse of the respondent;
      • Rehabilitation including counselling;
      • Medical treatment;
      • Compliance with any temporary protection orders; and
      • Changes of circumstances (such as parties separating or one party relocating to another place).

These three conditions must all be satisfied for the court to make a DV order.

More information can be found by visiting: 

DV – Guide to completing an application for a protection order (courts.qld.gov.au)

Step 3: file the application for the protection order at the Magistrates Court

  An application must be in the official form (DV1) and should be filed in a Magistrates Court.[18] The aggrieved or the aggrieved’s solicitor can file the application. It can also be filed via post. In some rare circumstances, the application can be filed via email. Learn more about electronically filing an application by visiting: Electronically filed domestic and family violence documents | Queensland Courts.

There is no filing fee attached to this process. 

Step 4: serving the sealed application 

Once the application is filed, a date for the hearing of the application will be provided immediately.[19] The clerk of the court will arrange for the police to serve (deliver) a copy of the application and any temporary order on the respondent.

The nearest police station can also inform the aggrieved on whether the application has been served on the respondent. Even if the application has not been served, the aggrieved will still have to go to court.

The respondent will receive a copy of the full application and attachments. If the aggrieved wishes to keep the address on the application form private from the respondent, the following form needs to be filed along with the DV order application: Form DV0IC – Aggrieved details form (version 2 – published on 17 July 2023) (courts.qld.gov.au)

If there are concerns about immediate safety, the aggrieved can ask the court to consider making an urgent ‘temporary protection order’. If the circumstances are urgent, the DV order application can be quickly listed to go before a magistrate. This can happen even if the application has not yet been served on the respondent. Make sure the box for a temporary protection order is ticked. 

Step 5: carefully read the conditions of the order once it has been made

When making an order, the court has wide discretion, and an order could prevent the respondent from:

• • Approaching the aggrieved or a named person at a home or workplace; 
  • Staying in a home the respondent and aggrieved used to share;
  • Approaching another person, relatives or their friends, if named in the order, within a certain distance; 
  • Going to a named child’s school or place of education/childcare; or
  • Breaching the court order. 

On top of these restrictions, there are certain conditions that must be included in all protection orders. These ‘standard conditions’ require the respondent to:

• • be of good behaviour to the aggrieved and any named persons;
  • not commit domestic towards the aggrieved or any named persons; and 
  • if a child is named, not expose the child to any forms of domestic violence.[20]

An order can continue for any period of time that the court thinks is necessary. If the time period is not expressly stated in the order, the period will continue for five years from when the order is made, however the court has discretion here.[21]

A protection order can protect both the aggrieved and other people who have been affected by the violence. A person included on the order is called a ‘named person’ and the conditions that apply to protect the aggrieved will apply to the named person. People who can be named and protected on the order include:

• • A child;
  • A child who usually lives or spends time with the aggrived on a regular basis;
  • A relative of the aggrieved; and
  • An associated person of the aggrieved, such as a new partner, colleague or friend.[22]

Note that the court is required to consider naming a child or children on a protection order[23] even if the parties have not requested that the child or children be named, or if the respondent does not provide consent. 

What different types of orders are there?

The court can make different types of orders based on the circumstances of the case, and these orders include:

Can the protection order be appealed? 

If either party disagrees with the magistrate’s decision, it can be appealed. The appeal needs to be filed in the District Court within 28 days from the date the magistrate made the decision about the protection order.

Can the protection order affect any existing family law orders?

The court must consider any existing family law or child protection orders before deciding to  make or change a protection order. Either party must tell the court of any existing family law or child protection orders, attach a copy of the orders to the protection order application or give a copy to the court.

The court must consider changing the family law order if the conditions in the order:

1. conflict with conditions in the protection order; and
2. could make the aggrieved, any children or anyone else named in the domestic violence application unsafe.

What happens after the domestic violence application is filed with the Court?

Non-compliance with the protection order

 Only the police can charge the respondent with breaching the protection order, and this can constitute a criminal offence. If the aggrieved believes that the order has been breached, the details of the breach ought to be recorded immediately as this may help the police. It will also help the police if there is evidence of the breach in the forms of: 

• • Text messages;
  • Posts on social media sites;
  • Letters;
  • Photographs;
  • Phone messages; and
  • Any diary entries.

 If the aggrieved informs the police that the respondent has breached the protection order, they must investigate and may charge the respondent with breaching the order.

 It will be a criminal offence if the respondent fails to comply with the protection order.[42] If the respondent has been previously convicted of an offence (breach of an order) within the past 5 years, the penalty will be 5 years imprisonment or 240 penalty units ($33,084). If the respondent has not been convicted of a previous breach, but has breached your current order, the penalty will be 3 years imprisonment or 120 penalty units ($16,554).

The rights of the aggrieved in Court

The aggrieved may bring a support person during the hearing, however they are not permitted speak on the aggrieved’s behalf unless authorised to do so. 

Court staff can arrange additional safety precautions for the aggrieved, such as waiting in a safety room rather than in a public area. A safety form ought to be completed here and this can be resourced by approaching a court officer. 

The court will consider whether to make the aggrieved, a child or a relative/associate a ‘protected person’ in the proceedings. This can allow the protected person to provide evidence in a way that is less confronting than standing in a court room and being asked questions by the person they allege has caused them harm. For instance, evidence can be provided outside the court room via an audio-visual link, a screen or one-way glass can be placed so that the protected person cannot see the respondent or the respondent could be required to stay in another room while the protected person gives evidence. The court will be closed to the public.[43]

If a party wishes attend a court event by telephone or audio-visual link rather than in person due to safety reasons or personal responsibilities, court approval must be granted. A form must be completed (DV01F) and filed with the protection order application. Alternatively, an email can be sent to the Magistrates court requesting to appear remotely. E-mail contact details for each courthouse can be found at https://www.courts.qld.gov.au/contacts/courthouses

A magistrate will consider a request to appear remotely and court registry staff will advise the aggrieved before the court date whether the request is granted. If the aggrieved does not hear from the court registry about the request to appear remotely, the aggrieved must attend court in person

Support – legal assistance

Both parties have the right to receive legal help and assistance. The parties can represent themselves or engage a lawyer to appear for them. The following table outlines the different avenues of assistance offered by the court. 

How much will this whole process cost?

If the services of a private lawyer have been engaged, these costs are incurred by the party. There are no costs if a police prosecutor represents the aggrieved at court. The aggrieved can apply for a Legal Aid Queensland lawyer if the police prosecutor is not available—depending on financial circumstances, the party may have to make a contribution towards legal aid costs.

The magistrate may make the aggrieved pay the respondent’s court costs if they decide to dismiss the application because they believe it is deliberately false, frivolous, vexatious or malicious.

Useful contacts

Legal services

• • • Legal Aid Queensland – 1300 65 11 88
    • Community Legal Centres Queensland – (07) 3392 0092
    • Indigenous Hotline (Legal Aid Queensland) – 1300 65 01 43
    • Violence Prevention and Women’s Advocacy (Legal Aid Queensland) – (07) 3917 0597
    • Queensland Indigenous Family Violence Legal Service – 1800 887 700
    • Women’s Legal Service – 1800 957 957
    • Women’s Legal Service – Rural, Regional and Remote Line – 1800 457 117
    • Refugee and Immigration Legal Service – (07) 3846 9333
    • LGBTI Legal Service – (07) 3124 7160
    • Queensland Law Society –1300 367 757
    • Aged and Disability Advocacy Australia –1800 818 338

Government agencies

• • • Women’s Infolink –1800 177 577
    • Centrelink –13 28 50
    • Child Safety Enquiries and Notification Unit –1800 811 810

Domestic violence services 

• • • 1800 RESPECT telephone counselling –1800 737 732
    • DV Connect –1800 811 81
    • DV Connect, Mensline –1800 600 636
    • Mensline Australia – 1300 789 978
    • Immigrant Women’s Support Service – (07) 3846 3490

Counselling and support services

• • • Lifeline – 13 11 14
    • Suicide Call Back Service –1300 659 467
    • Ozcare –1800 692 273
    • Relationships Australia and Rainbow Counselling –1300 364 277
    • Diverse Voices (LGBTI peer support) –1800 184 527

Interpreting services

• • • Deaf Services Queensland – (07) 3892 8500
    • National Relay Service –1300 65 11 88 
    • Translating and Interpreting Service –13 14 50

Who can apply to the court for domestic violence?

• • 

    the person experiencing the domestic and family violence (the aggrieved)

  • someone else, for example, a solicitor or social worker, can apply on behalf of the aggrieved with the aggrieved person’s consent
  • a police officer attending a call out due to an incident of domestic and family violence. The consent of the aggrieved is not required for a police application
  • someone acting under another Act for the aggrieved, for example, a guardian for a personal matter, or an administrator for a financial matter under the Guardianship and Administration Act 2000
  • the Adult Guardian can apply if they believe that the aggrieved needs legal protection but does not have the capacity to apply for a protection order
  • someone who is appointed as the attorney of the aggrieved under the Powers of Attorney Act 1998 and who makes the application under the enduring power of attorney QLD.

Orders can be issued by the Court on a temporary or permanent nature. The general order made by the Court is:

1. 1. The respondent (the person who uses abuse or violence) must be of good behaviour towards the aggrieved (the person who needs the order to protect them) and not commit domestic violence
   2. If a named person is specified in the order the respondent must be of good behaviour towards the named person and not commit an act of associated domestic violence against the person.

Other orders can be made by the Court confiscating firearms, removing a party from the family home, limiting the powers of a party to contact the person affected by the domestic violence including children and orders prohibiting a party from being in the vicinity of the family home, the workplace of the other party or contacting the party by any means.

What are the police powers in relation to this?

The role of the Queensland Police is to respond to threats or incidences of violence and bring the matter before the Court. Many police officers are called to domestic violence incidents by victims or concerned neighbours.
The priority of a police officer called to an incident is to ensure the safety of the parties involved.

A Queensland Police publication advises that:

If a police officer reasonably suspects an incident of violence(including physical, sexual, verbal or financial abuse; damage to property; harassment or intimidation; or threatening to do any of these), it is their duty to investigate the matter thoroughly.

This investigation may include:

Separating the parties

• Asking personal questions — such as the history of the relationship and the reason for the present problem.
• Searching the premises for anything associated with causing injury or harm.
• Removing the person using domestic violence and placing them in custody for up to four hours.

Can I make my own domestic violence application?

If the police are not willing to act and initiate an application for a Protection Order a person may apply for one or have their lawyer bring the domestic violence application on their behalf.

If a lawyer assists, they can draft the necessary application ensuring that it contains all relevant information that the Court will require to consider that application. The lawyer can represent the party in all aspects of the application and the subsequent hearings in the Court.

At James Noble Law we have the knowledge and experience to advise and guide our clients through the many and varied intricacies associated with domestic violence proceedings.

We will draft the necessary documents to ensure they set out all relevant circumstances to comply with the legislative requirements to achieve the best outcome and to represent our clients in domestic violence court proceedings. We are only too happy to act on your behalf in this regard.

In need of legal support?

At James Noble Law, we are here to support and help you through this difficult process. We are your trusted Family Law experts, offering Family Law Services in Brisbane, Cairns Family Law, and Milton Family law Services for more than 50 years. Speak to one of our lawyers to better understand your rights. We offer a complimentary 20-minute consultation with our skilled legal team – no strings attached. Secure your appointment now to connect with our experienced family lawyers.

Call our team on 1800 662 535 or email us at team@jamesnoblelaw.com.au.

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You may also like to know more information about the

• Domestic Violence in Australia and Spousal Visas.
• When Domestic and Family Violence Turns Deadly.
• Breaching Domestic Violence Order.
• Awarding Costs For False Statement To Judge.