Antonious Abdelshahied, Principal of Moloney MacCallum Lawyers
This article is an overview of Domestic Violence laws in Queensland which is governed by the Domestic and Family Violence Protection Act 2012 (“the Act”).
Given the rise in Domestic Violence, a specialist court has been established within the Southport Magistrates Court to provide consistency and to deal with complex and difficult situations. Anyone who suffers from any form of Domestic Violence is encouraged to contact DV Connect on 1800 811 811 (24 hours a day/7 days a week).
We will cover the following:
What are the main objects of the Act;
Requirements to obtain a Domestic Violence Order;
What constitutes ‘domestic violence’;
What is a ‘relevant relationship’;
Who can be included in the Order;
What conditions can be imposed in an Order;
Domestic Violence Orders – duration and effect;
Contravention of Domestic Violence Orders.
The main objects of the Act can be found in Section 3 of the Act and are as follows:
to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives; and
to prevent or reduce domestic violence and the exposure of children to domestic violence; and
to ensure that people who commit domestic violence are held accountable for their actions.
Requirements to obtain a Domestic Violence Order
In order to obtain a Domestic Violence Order the Applicant/Aggrieved needs to demonstrate that:
A relevant relationship exists between the Aggrieved and Respondent;
An Act of Domestic Violence (note: 1 act) has occurred on the balance of probabilities; and
That an Order is necessary or desirable in all the circumstances.
If one of the above has not been demonstrated the Court will not make a Domestic Violence Order against a party.
What constitutes ‘domestic violence’?
Section 8 of the Act widely defines what actually constitutes ‘domestic violence’.
Domestic Violence includes:
is physically or sexually abusive; or
is emotionally or psychologically abusive; or
is economically abusive; or
is threatening; or
is 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 well being or that of someone else.
In light of the above, domestic violence therefore includes, but is not limited to, the following types of behaviour:
causing personal injury to a person or threatening to do so;
coercing a person to engage in sexual activity or attempting to do so;
damaging a person's property or threatening to do so;
depriving a person of the person's liberty or threatening to do so;
threatening a person with the death or injury of the person, a child of the person, or someone else;
threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;
causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;
unauthorised surveillance of a person;
unlawfully stalking a person.
The above also includes compelling or forcing someone else to engage in acts of domestic violence.
What is a ‘relevant relationship’?
Section 13 provides the meaning of ‘relevant relationship’ and includes:
An intimate personal relationship (which includes de facto, same sex and married couples);
A family relationship (which includes current or former relatives); or
An informal care relationship (which includes dependant persons).
The above therefore includes the following relationships:
Current or former spouses;
Who can be included in the Order?
Section 52 of the Act gives the Court the power to name other persons on the Order, such as relatives or associates of the aggrieved.
Section 53 of the Act further extends the Courts power to include a child/children on a Temporary or Final Protection Order if the Court is satisfied that naming the child/children in the Order is necessary or desirable to protect them from associated domestic violence or being exposed to domestic violence committed by a Respondent to the Order.
The Court also has the power to, in some circumstances, ask the Department of Communities (Child Safety) to provide information about a child or children or the parties to the Order (Aggrieved or Respondent) in deciding whether to name them in the Order.
What conditions can be imposed in an Order
A Court can impose a number of conditions when making a Protection Order. Those conditions include, but are not limited to, the following:
That a Respondent be of Good Behaviour towards the Aggrieved and not commit domestic violence against the Aggrieved (Mandatory Condition);
That a Respondent be prohibited from contacting or attempting to contact the Aggrieved;
That a Respondent be prohibited from approaching or attempting to approach the Aggrieved (and the named persons including children) within 100m (or further should the Aggrieved require);
That a Respondent be prohibited from locating or attempting to locate the Aggrieved;
That a Respondent be prohibited from attending any place the Aggrieved or Named Children reside including any prohibition on attending any place associated with the Aggrieved and Named Children (i.e. home, work, school and day care);
That a Respondent be required to returned personal property to the Aggrieved or to allow access to the personal property (usually in the company of Police pursuant to Section 66 of the Act) or any condition necessary to facilitate the return of that personal property to the Aggrieved;
That a Respondent be prohibited from posting anything online related to the Aggrieved or Named Children;
That a Respondent be prohibited from remaining at a specified premises (commonly known as an ‘ouster’ condition), entering or attempting to enter the premises or approaching within a stated distance of the premises;
A Voluntary Intervention Order requiring a Respondent to attend an approved intervention program by an approved provider and/or counselling.
Section 60 of the Act provides that contact can be made with an Aggrieved party by the Respondent’s Lawyer without being in breach of the Order.
Domestic Violence Orders – Effect and Duration
A domestic violence order takes effect on the day it is made or on the day it is made while another domestic violence order is already in place (a further domestic violence order) and ends on the day stated in the Order or the day that is two (2) years after the day the Order is made. The Court also has the power, if the Court is satisfied of special circumstances, to make an Order beyond a period of two (2) years.
A temporary domestic violence order ends when a final protection order is made or the court, after hearing the matter, refuses to make a final order or the application for a protection order is withdrawn.
Contravention of Domestic Violence Orders
It is important to be aware that the making of a Domestic Violence Order does not appear on your criminal record or is criminal in nature. Having said this, it is extremely important to be aware that by breaching a Domestic Violence Order you WILL be committing a criminal offence and may be charged by the police.
As such if a Domestic Violence Order is made we strongly suggest that you adhere strictly to the terms of the Order and not do any action that would constitute a breach of the Orders.
If you are charged you risk a fine, good behaviour Order, probation, or imprisonment.
At Moloney MacCallum Lawyers, we strongly encourage all parties to seek urgent legal advice if they are subjected to Domestic Violence or named as a Respondent to an Domestic Violence Order. This is especially important if there are children of the relationship. For more information, contact our Principal, Antonious Abdelshahied on (07) 5532 0066 who specialises in all domestic violence and family law matters.