Domestic violence is governed under the Domestic and Family Violence Protection Act 1989 and is generally heard in the Magistrates Court where the aggrieved resides or the domestic violence incident occurred.
Common terms:
Aggrieved - person who is suffering/experiencing the violence.
Respondent - person who is committing the violence.
Types of relationships covered:
1. Spousal - married, separated, divorced, defacto, persons of same or opposite sex living together or who have previously lived together as a couple.
2. Intimate personal - persons who are/were engaged or those who were dating. Whether a relationship falls into this category depends upon factors such as level of trust and commitment, length of time in the relationship, frequency and extent of intimacy.
3. Family - includes relatives by blood or marriage or persons regarded in particular cultures as relatives.
4. Informal care - persons who are dependent upon another because of disabiliy, illness or impairment for assistance in an informal, no-fee basis with some aspect of daily living ("fee" not includig a carer's pension).
What constitutes domestic violence:
- "Wilful injury' to the aggrieved eg punching, kicking, spitting, choking.
- 'Wilful damage' to the aggrieved's property eg breaking possessions, punching holes in walls or hurting animals.
- 'Intimidation / harassment' of the aggrieved eg following / stalking, constant phone calls, threatening a person with withdrawal of care, threatening a person with violence.
- 'Indecent behaviour' - no consent eg forcing aggrieved to engage in sexual activity or unwanted sexual contact.
- A threat to commit one of the acts mentioned above.
- It also includes the respondent asking or getting someone else to injure, intimidate, harass or threaten the other person, or damage the other person's property.
Who can apply for an order:
1. An aggrieved
2. An adult authorised in writing by the aggrieved eg friend, carer, relative, community worker or solicitor.
3. An adult the court believes is authorised by the aggrieved but the authority is not in writing eg the aggrieved is suffering a physical disability.
4. A police officer.
5. A guardian for a personal matter of the aggrieved or administrator for financial matters.
6. An adult guardian if the aggrieved does not have capacity.
7. A person appointed as the aggrieved’s attorney under an Enduring Power of Attorney.
Kinds of Orders:
· Temporary
· Protection
What the Magistrate must be satisfied of being granting an order:
1. the respondent has committed an act of domestic violence against the aggrieved;
2. and the respondent is likely to commit an act of domestic violence again;
3. if the act of domestic violence was a threat that the respondent is likely to carry out the threat.
Standard Conditions:
1. The respondent must be of good behaviour towards the aggrieved and not commit domestic violence.
2. The respondent must be of good behaviour towards any other named person in the order and not commit an act of associated domestic violence against the other person.
3. The respondent will have to surrender all weapons and weapons licences.
Other possible conditions:
1. Restricting the respondent from approaching a place where the aggrieved works or lives;
2. Preventing the respondent from remaining in a home where the aggrieved and respondent use to live together;
3. Restricting the respondent from approaching the aggrieved, her/his relatives or associates named in the order, including stating a distance the respondent may not approach;
4. Preventing the respondent from going to a child’s school or day care centre;
5. Requiring the respondent to return property belonging to the aggrieved or named persons;
6. Allowing the aggrieved to return to a former home to retrieve property;
7. Preventing the respondent from making contact, written or verbal, with the aggrieved or named persons.
Some exceptions apply which generally relate to Family Court / child custody issues.
Duration of an order:
Normally two (2) years, however this can be reduced usually only if both parties agree.
Steps of the court procedure:
1. Application submitted.
2. Mention (first date assigned to the matter when the application is lodged, application will not necessarily be finalised on this date).
3. Respondent served by police with a copy of the application and summons to appear on the mention date.
4. At the mention – if the parties agree an order is made. If the respondent is not present and is served with the summons, the Magistrate may make a final order.
5. At the mention – if the parties do not agree, a temporary order may be made and a hearing date is set.
6. Hearing – where a final decision is made whether an order should be made.
GENERAL QUESTIONS
1. Can there be more than 1 respondent?
a. Yes
2. Is an order civil or criminal?
a. An order is a civil matter so does not appear on the respondent’s criminal history. HOWEVER, if the respondent breaches the order the breach becomes a criminal matter, and if found guilty the respondent will have an entry placed on his/her criminal history.
3. Is there an automatic order preventing the respondent from living with the aggrieved?
a. No. The Magistrate will not make an automatic order preventing the respondent from living with the aggrieved. This condition must be requested at the time of the application or mention. The Magistrate will not grant the order unless the Magistrate is satisfied it is required for the safety of the aggrieved or any named persons.
4. Can children be named on the order?
a. Yes. If there are Family Court Orders or applications in place the aggrieved should provide a copy with the application.
5. Can the Magistrate temporarily suspend a Family Court Order?
a. Yes.
6. Can relatives or associates be included in the order?
a. Yes. Any named person/s is protected under the order the same way an aggrieved person is protected.
7. Can persons under 18 years be an aggrieved or respondent?
a. Yes, under a spousal, intimate personal or informal care relationship. However, a person under 18 years cannot be an aggrieved or respondent under a family relationship. If the person is under 16 years, copies of the paperwork must got the parents as well.
8. Can a person under 18 years make an application against his/her parents?
a. No.
9. Can a parent make an application against a child?
a. No - if the child is under 18 years of age. Yes – if the child is over 18 years.
10. Can the aggrieved or respondent have a support person in the court room?
a. Yes, provided the support person does not interfere with the proceedings.
11. Is the court open or closed during the proceedings?
a. Closed with no publication of any details.
12. Urgent protection?
a. Yes, normally applied for by police without the presence of the respondent, if there is danger of personal injury to the aggrieved or serious property damage.
13. Appeal of decision possible?
a. Yes.
14. Changes to or withdrawal of order?
a. Yes.
15. Can you register an interstate order in Qld?
a. Yes.
16. Can you register a Qld order interstate?
a. Yes.
