Domestic violence orders
- What is a domestic violence order?
- Who are the aggrieved and respondent?
- Who can apply for a domestic violence order?
- What is the process for getting a domestic violence order?
- What are the conditions of a domestic violence order?
- What is the role of the police?
- Who else can be protected by a domestic violence order?
- Can children and young people be applicants and respondents for domestic violence orders?
- What if urgent protection is needed?
- Who can be present in Court during domestic and family violence hearings?
- What happens when the domestic violence order is made?
- What happens if the respondent breaches the domestic violence order?
- How can a domestic violence order be changed or revoked?
- What if the aggrieved or respondent disagree with the Magistrate's decision?
- How is a domestic violence order registered if the aggrieved moves to a new State, Territory or New Zealand?
- What if the aggrieved and respondent rent a property together?
What is a domestic violence order?
A domestic violence order is an order made by the Court that includes conditions that restrain, restrict and prohibit the behaviour of the respondent in order to prevent further domestic violence.
In the Domestic and Family Violence Prevention Act 1989 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.
The Act allows the Court to make a domestic violence order against a respondent if the Court is satisfied that:
- the respondent has committed an act of domestic violence against the aggrieved
- the respondent is likely to commit an act of domestic violence again
- if the act of domestic violence was a threat, that the respondent is likely to carry out the threat.
A domestic violence order can protect the aggrieved and relatives and associates of the aggrieved who are named in the order.
A domestic violence order is a civil order and not a criminal matter. However, a respondent 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.
Who are the aggrieved and respondent?
The aggrieved is the person for whose benefit the domestic violence order is made and the respondent is the person against whom the domestic violence order is made.
Who can apply for a domestic violence order?
An application for a domestic violence order may be made by:
- the aggrieved (the person who has experienced domestic violence)
- an adult authorised in writing by the aggrieved such as a friend, carer, relative or community worker
- an adult whom the Court believes is authorised by the aggrieved even though the authority is not in writing, for example, if the aggrieved has a physical disability that prevents this
- a police officer
- a guardian for a personal matter of the aggrieved, or an administrator for a financial matter of the aggrieved, under the Guardianship and Administration Act 2000
- the Adult Guardian who considers that the aggrieved does not have the capacity to make an application for a protection order
- a person appointed as the aggrieved's attorney under the Powers of Attorney Act 1998 and the person makes the application under the enduring power of attorney.
What is the process for getting a domestic violence order?
Application
Magistrate Courts have application forms for domestic violence orders. The applicant needs to fill in the form and lodge it at their local Courthouse. Alternatively, someone you have authorised in writing can also lodge it for you by giving it to the Court. Domestic and family violence services may also be able to assist you with applying for an order.
The applicant will be given a first Court hearing date (called the mention) when they lodge the application form.
The police will give the respondent (the person against whom the order is being made) a copy of the application and a summons to appear in Court for the mention.
The mention
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 and a summons to appear at the mention.
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 that is valid until a final decision is made.
The hearing
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 domestic violence order is usually made for a period of two years. In certain circumstances it may be made for longer.
What are the conditions of a domestic violence order?
The two standard conditions on all domestic violence orders are that:
- the respondent must be of good behaviour towards the aggrieved and not commit domestic violence
- the respondent must be of good behaviour towards any named person in the order and not commit an act of associated domestic violence against the person.
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:
- approaching a place where the aggrieved works or lives
- remaining in a home where the aggrieved and respondent used to live together (the Court may allow the respondent to return to the home to collect property)
- approaching the aggrieved, their relatives or associates named in the order, including stating a distance from which the respondent may not approach (for example 100 metres)
- going to a child's school or day care centre.
A Court may also order that:
- the respondent return property belonging to the aggrieved
- allow the aggrieved to return to a former home to retrieve property.
The Court 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.
What is the role of the police?
The police play an important role in responding to domestic and family violence. Some of the actions police can take include:
- investigating suspected domestic violence
- applying for a domestic violence order if they are satisfied domestic violence has occurred
- entering and searching premises without a warrant if they suspect domestic violence has occurred or there is a risk of domestic violence occurring soon
- seizing anything that has been or may be used to commit domestic violence
- taking the person committing the violence into custody for a maximum period of four hours if they believe the aggrieved or the aggrieved's property is in danger of domestic violence
- asking a Magistrate to make a temporary protection order by telephone, fax, radio or other similar device
- investigating breaches of a domestic violence order when a respondent continues to commit domestic violence after the order has been made
- charging a respondent with a criminal offence if sufficient evidence is available that a breach of a domestic violence order has occurred.
Who else can be protected by a domestic violence order?
Children 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 respondent has committed or threatened to commit an act of domestic violence against them.
Being named on the order provides the relatives or associates of the aggrieved with the same standard of protection as granted to the aggrieved.
Can children and young people be applicants and respondents for domestic violence orders?
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 in a 'spousal relationship', '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.
If the young person is between 16 and 18, a copy of the documents will not be given to the parent/s unless the Court specifically orders it.
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.
What if urgent protection is needed?
If the aggrieved is in danger and needs protection urgently they should contact the police. The police may 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 an immediate 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 and a summons if it appears to the Court that:
- the aggrieved or named person is in danger of personal injury; or
- property of the aggrieved or named person is in danger of substantial damage.
Who can be present in Court during domestic and family violence hearings?
The applicant for a domestic violence order can have a person in Court with them for assistance and support. 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.
What happens when the domestic violence order is made?
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 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.
What happens if the respondent breaches the domestic violence order?
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 two years imprisonment.
How can a domestic violence order be changed or revoked?
The aggrieved, respondent, an authorised person or a police officer can apply to change or revoke (stop) a domestic violence order. 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 Police can do this if the aggrieved is trying to increase the protection provided to them.
The Magistrate must be convinced that the aggrieved is not being pressured or threatened by the respondent before they will revoke a domestic violence order.
What if the aggrieved or respondent disagree with the Magistrate's decision?
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.
How is a domestic violence order registered if the aggrieved moves to a new State, Territory or New Zealand?
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.
The Magistrates Court can vary or stop an interstate order once it has been registered in that State, Territory or in New Zealand.
What if the aggrieved and respondent rent a property together?
If the two parties to a domestic violence order share a rented house or flat, they can ask the Small Claims Tribunal to make an order about the rented premises if domestic violence has occurred.
The Small Claims Tribunal can make orders including:
- inserting the aggrieved's name on the lease as the tenant (even if it was not originally on there);
- removing the respondent from the lease; or
- ending the lease.
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 at 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.
Read more about the Queensland Domestic and Family Violence Protection Act 1989.
Confidential support and advice for women affected by domestic violence is available by phoning dvconnect Womensline on 1800 811 811 (24hours, 7 days a week).
Note: This number is not recorded on your phone bill.
