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Domestic Violence Law In Queensland

Potts Lawyers > Criminal Law > Domestic Violence Law In Queensland

New laws were introduced in Queensland in 2012 to provide protection to people who experience violence in a domestic or family situation.  A domestic violence protection order is a civil order that prevents the person whom the order is taken out against (the respondent) from acting violent towards anyone named in the order.  It does this by stating rules and conditions that the respondent must obey.  If they don’t follow these conditions and breach what the order says, there are serious criminal consequences that can lead to imprisonment.

Our team of lawyers have a wealth of experience in domestic violence matters and are able to provide a holistic approach to these complex situations.  We can help you if you are in need of protection from violence in a relationship or if you have been charged with contravening a protection order that was made against you.

Our lawyers specialise in the following types of domestic violence matters:-

  • Assisting you in applying for a domestic violence protection order;
  • Assisting you in varying the terms of an existing domestic violence protection order;
  • Defending an application made against you for a domestic violence protection order;
  • Assisting you in registering an interstate domestic violence protection order; and
  • Advocating for you if you are charged with breaching a domestic violence protection order.

What is Domestic Violence?

Domestic Violence is defined in the Domestic and Family Violence Protection Act 2012 as:

“…behaviour by a person towards another person with whom the first person is in a relevant relationship that is physically, sexually, emotionally, psychologically or economically abusive, threatening, coercive or in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.”

What sorts of behaviour constitutes domestic violence?

Examples of behaviour that constitutes domestic violence includes:-

  • injuring (or threatening to injure) you (e.g. punching, strangling, pushing, slapping, grabbing your throat, pulling your hair, or twisting your arms)
  • repeatedly contacting you without your consent (e.g. calling, texting, emailing, or contacting you on social networking sites)
  • damaging (or threatening to damage) your property (e.g. punching holes in the walls or breaking plates)
  • stalking you, following you, or remaining outside your house or place of work
  • monitoring you without your consent (e.g. reading your text messages, your email account, your internet browser history, your social networking sites)
  • putting you down or make racial taunts
  • holding you against your will
  • forcing you to engage in sexual activities without your consent
  • getting someone else to injure, intimidate, harass or threaten you, or damage your property
  • threatening to commit suicide or self-harm to scare you
  • threatening you with the death or harm of another person
  • threatening to withdraw their care of you if you don’t do something
  • coercing or forcing you to give them your Centrelink or other payments
  • forcing you (without your consent and against your will) to sign a power of attorney to them to allow them to manage your finances
  • threatening to disclose your sexual orientation to your friends or family without your consent
  • preventing you from making or maintaining connections with your family, friends or culture, including cultural or spiritual ceremonies or practices.

What is a relevant relationship?

A ‘relevant relationship’ is defined as an intimate personal relationship, a family relationship or an informal care relationship. Details of relevant relationships include:-

  • An intimate personal relationship (i.e. married, de facto, registered relationship, engaged couple, couple spouses, engaged couples, and couples that have or had a relationship together).
  • A family relationship means two people that are related in the sense that they are or were connected by blood or marriage (i.e. spouses, children (including a child 18 years or older), stepchild, parent, step-parent, sibling, grandparent, aunt, nephew, cousin, half-brother, mother-in-law or aunt-in-law)
  • An informal care relationship is when one person is or was dependent on the other person for help in an activity of daily living (i.e. carer)

What are Domestic Violence Protection Orders?

A court can make a domestic violence order against a person (the respondent) for the benefit of another person (the aggrieved).  There are two separate orders a court can make: protection orders and temporary protection orders.

Sometimes, the court can make a domestic violence order even though the respondent is not notified about the application for a domestic violence order or does not appear in court.

When can a court make a Domestic Violence Protection Order?

Section 37 of the Domestic and Family Violence Protection Act 2012 outlines when a court may make a protection order:-

(1)    A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that—
(a)    a relevant relationship exists between the aggrieved and the respondent; and
(b)   the respondent has committed domestic violence against the aggrieved; and
(c)    the protection order is necessary or desirable to protect the aggrieved from domestic violence.

What would the court consider it necessary or desirable to make a domestic violence protection order?

In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence, the court:-

(a)    must consider the principles mentioned in section 4; and
(b)   may consider whether a voluntary intervention order has previously been made against the respondent and whether the respondent has complied with the order.

The principles mentioned in section 4 of Domestic and Family Violence Protection Act 2012are:-

  1. This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.
  2. Subject to subsection (1), this Act is also to be administered under the following principles
    (a) people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives minimised;
    (b) perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;
    (c) if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics;
    (d) in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is most in need of protection should be identified;
    (e) a civil response under this Act should operate in conjunction with, not instead of, the criminal law.

Are Children included on Domestic Violence Protection Orders?

Children can be included on a domestic violence protection order to protect them from violence.  This can include your children, or children who usually live with you (i.e. a child who spends time at your home on a regular or on-going basis, including step-children or other children who spend time at your home on weekends or school holidays).  It can also include unborn children if you are pregnant (the order would have a condition that takes effect when the child is born).

The Court will include children on a domestic violence protection order if they believe it is necessary or desirable to protect the child from domestic violence.  A child has been exposed to domestic violence if they hear, see, or “otherwise experience” domestic violence. This includes helping a family member who has been hurt as a result of domestic violence, or seeing damaged property in the home.

If the court is aware that you have children living with you or regularly visiting your home, then it must consider adding those children on the domestic violence protection order.

What is a Temporary Protection Order and when can a court make one?

A temporary protection order is an order made in the interim period before a court decides whether to make a protection order for the benefit of an aggrieved.

A court can make a temporary protection order if:-

(a)     the court adjourns the hearing of an application for a protection order  or the hearing of an application for a variation of an order; or
(b)    the applicant for a protection order or the variation of an order has asked the court for the application to be heard by the court before the respondent is served; or
(c)     an application for a temporary protection order is made to the court by a police officer.

A court may make a temporary protection order only if it is satisfied that:-

(a)    a relevant relationship exists between the aggrieved and the respondent; and
(b)   the respondent has committed domestic violence against the aggrieved.

A court need only consider evidence that is sufficient and appropriate having regard to the temporary nature of the order when deciding whether to make a temporary protection order.

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What are the conditions of a protection order?

Each domestic violence protection order is different and the conditions that are imposed will depend on the circumstances of the matter.  There are standard conditions that must be included in a protection order.  Section 56 of Domestic and Family Violence Protection Act 2012 states that a court making a domestic violence order must impose a condition that the respondent:-

(a) be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved; and
(b) if the order includes a named person who is an adult—
(i) be of good behaviour towards the named person; and
(ii) not commit associated domestic violence against the named person; and

(c) if the order includes a named person who is a child—
(i) be of good behaviour towards the child; and
(ii) not commit associated domestic violence against the child; and
(iii) not expose the child to domestic violence.

However, the Magistrate may impose other conditions depending on the circumstances.  These need to be necessary in the circumstances and desirable in the interests of the aggrieved, any named person, or the respondent.

In determining what orders to make, the court must always consider the paramount principle of safety, protection, and wellbeing of people who fear or experience domestic violence, including children.

Examples of conditions that may be imposed on a respondent to a domestic violence order include conditions that:-

  • Prohibit behaviour that is considered domestic violence or is likely to lead to domestic violence;
  • Prohibit the respondent from approaching (or attempting to approach) the aggrieved (sometimes a distance that an approach is prohibited may be listed, e.g. 100 meters from the aggrieved, their home, or place of work);
  • Prohibit the aggrieved from contacting the aggrieved (or attempting to contact or having someone else attempt to contact);
  • Require the respondent to return property to the aggrieved;
  • Limit contact between a parent and child; and
  • Require a respondent to leave a location (and not attempt to enter that premises or approach it within a stated distance).

What is the police’s role in domestic violence protection orders?

Often police officers are the first to respond to incidences of domestic and family violence.  Under the Domestic and Family Violence Protection Act 2012, the police have the power to issue a protection notice when they attend a domestic violence incident and they reasonably believe that domestic violence occurred.

This notice is taken to be an application for a protection order to be determined in the Magistrates Court at a later date.  The notice includes a standard condition that the respondent must be of good behaviour and must not commit further domestic violence towards the aggrieved.  Police may also impose the following ‘cool down’ conditions if they believe it is necessary and desirable to do so:-

(a)    that the respondent is prohibited from entering (or attempting to enter, or remain at) a stated premises, or approaching within a distance of stated premises;
(b)   that the respondent is prohibited from approaching (or attempting to approach) within a stated distance of the aggrieved; and
(c)    that the respondent is prohibited from contacting (attempting to contact, or asking someone else to contact) the aggrieved.

Police also have the power to apply to the court for a protection order or a variation of an existing protection order.

What if a domestic violence protection order or police protection notice has been taken out against me?

If someone has applied for a domestic violence order against you, you have four options in moving forward.  You can:-

(a)    Consent to an order being made.
(b)   Ask for the proceedings to be adjourned so you can get legal advice.
(c)    Oppose the orders the aggrieved has asked for.
(d)   Do nothing and not attend court (although an order may still be made in your absence).

You must consider the following if there is a domestic violence order made against you:-

  • Do not break the conditions on the order or the notice, even if you do not agree with it.
  • Read the order or notice carefully and contact us for legal advice so that we are able to explain the conditions imposed against you.
  • Get support from family, friends or a support service.  We are able to refer you to appropriate support services available in your area.

A domestic violence protection order is a civil order, which means that you are not charged with a criminal offence unless you breach the order.  You must follow the conditions set out in the protection order.  If you breach the conditions in the order, the police can charge you with a criminal offence where you will face serious penalties.

Should I get legal advice if a domestic violence protection order is made against me?

You should obtain legal advice if there is a domestic violence protection order made against you.  If a domestic violence order is made against you, it may affect any licences and other cards you hold, including weapons and security licences.

The conditions of an order or notice are very serious and it is important to obtain legal advice to fully understand the conditions imposed against you.  Breaching a domestic violence protection order (including any temporary orders or police protection notices) is a serious criminal offence. If you are found guilty of breaching a protection order, you could face serious penalties, including terms of imprisonment.

We have experienced lawyers who are able to assist you if you have a domestic violence order taken out against you. Contact us today.

What happens if I breach a protection order?

Section 177 of the Domestic and Family Violence Protection Act 2012 makes it an offence to breach the conditions of a protection order if the respondent against whom a domestic violence order has been made:-

(a)    was present in court when the order was made; or
(b)   has been served with a copy of the order; or
(c)    has been told by a police officer about the existence of the order.

The maximum penalty for contravention of a protection order is 2 years imprisonment or a fine of 60 penalty units*.  If you have previously breached a protection order within 5 years of committing the second offence, the maximum penalty is 3 years imprisonment or a fine of 120 penalty units*.

*One penalty unit = $117.80.

You should contact us if you are charged with breach of a domestic violence protection order made against you.  Our lawyers are experienced in these charges and can give you detailed advice around the charge and your options.

Which court will hear the matter if I breach a domestic violence protection order?

A contravention or breach of a domestic violence protection order is a simple offence and therefore will be heard in the Magistrates Court.

What are some possible defences for breaching a domestic violence protection order?

Possible defences for breaches of a domestic violence order include (but are not limited to):-

  • Where the accused was not the subject of the Domestic Violence Order Notice
  • Duress (e.g. there was a threat to the accused or another person that the accused reasonably believed would have been carried out if he/she had not have done the act that was in breach of the protection order).
  • Necessity (e.g. there was an extraordinary emergency that led to the breach of the protection order).
  • Insanity
  • Identification (i.e. the accused was not the person who ‘breached’ the protection order)
  • Mistake of fact (e.g. the accused had an honest and reasonable, but mistaken belief that they were not the subject of the Domestic Violence Order).

It is not a defence for proceedings in respect of an order made interstate to show that the accused was unaware the interstate order could be registered in Queensland or was in fact registered in Queensland.

Temporary & Domestic Violence Protection Order Process for a Respondent (Flow Chart)

Stage 1. a) DVO Application is made b) Potential for Temporary Protection Order can be made c) Respondents first court appearance

domestic-violence-protection-order-stage1

Stage 2. Adjourn for further mention

domestic-violence-protection-order-stage2

Stage 3. Proceeding to trial

domestic-violence-protection-order-stage3

You should contact us about what defences may be open to you if you are in breach of a domestic violence protection order.

Do you need legal help or consultance? Contact us now.