It's never too late to get help

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Since the introduction of new domestic violence lawyers in Queensland in 2012, there is more protection for people who are experiencing violence in domestic or family situations.

In Queensland, if you are a person in need of protection, the courts will give a Domestic Violence Protection Order, which is a civil order preventing another person from acting violently against a victim. Generally, this could include certain rules and conditions such as not following a person or otherwise remaining at a stated place, not contacting a person, remaining a certain distance from a person and so on.

Where a Domestic Violence Protection Order is breached, there can be serious criminal consequences that could result in imprisonment.

Our team have extensive experience in all types of domestic violence matters, from defence to bringing an application to protect a person to contested trials. Whatever your situation is, we can help, including:

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• Preparation of Applications

• Appearances in all court processes

• Variations to the terms or conditions of the Domestic Violence Protection Orders

• Defending an Application for a Domestic Violence Protection Order

• Registration of Interstate Domestic Violence Protection Orders

• Representation for alleged contraventions or breaches

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What is domestic violence?

Domestic violence is defined very broadly in section 8 of the Domestic and Family Violence Protection Act 2012 (Qld) as follows:

“… behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that… is physically or sexually abusive… is emotionally or psychologically abusive… is economically abusive… is threatening… is coercive… in any other way control 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…”

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What constitutes domestic violence?

There are many examples of what constitutes domestic violence, including (but certainly not limited to):

• Threatening a person or their property

• Damaging property

• Injuring another person physically (hitting, biting, punching, strangulation, slapping, grabbing, pulling hair and so on)

• Stalking, following or even remaining outside another person’s place of work or home

• Reading text messages, emails, viewing browsing history or social networking sites without consent or knowledge

• Forcing another person to engage in sexual activities

• Causing another person to harass, injure, intimidate or threaten you

• Threatening you, a child, someone else or themselves with harm or death, including suicide

• Threatening to end a relationship

• Controlling your finances, or otherwise preventing you from access

• Preventing the maintenance of relationships with family, children, friends or otherwise

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What is a relevant relationship?

A ‘relevant relationship’ is defined in section 13 of the Domestic and Family Violence Protection Act 2012 (Qld) as follows:

“A relevant relationship is… an intimate personal relationship; or a family relationship; or an informal care relationship.”

An intimate personal relationship is a spousal relationship (between spouses and also includes a parent or former parent of a child).

A family relationship means two people that are related in the sense that they are or were formerly connected by blood or marriage, a stepchild, a parent, step-parent, sibling, aunt, nephew, cousin, half-brother, mother-in-law or aunt-in-law and so on.

An informal care relationship is essentially when one person is, or was formerly, dependent on the other person for help with activities or daily living. This could include carers as an example.

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What are domestic violence protection orders and when can a court make one?

A Domestic Violence Protection Order is a civil order by a Court which orders one person (usually a respondent) to do or refrain from doing certain things against another person (usually an aggrieved person).

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A Court is at liberty to grant a Temporary Protection Order or a Protection Order. Generally seeking, the hurdle for obtaining the Temporary Protection Order is not difficult because the threshold is lower, and often it is made in the absence of the respondent being notified.

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When can a court make a protection order?

Section 37 of the Domestic and Family Violence Protection Act 2012 (Qld) provided that a court can make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied:

(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.

When deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence, the court must consider the principles for administering the Act and whether the respondent has been the subject of a prior intervention order, whether they have complied with this and whether it is appropriate in the circumstances.

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Including children on domestic violence protection orders

Children can be included in a Domestic Violence Property Order to protect them from violence or the risk of harm. This can generally include an aggrieved person's children, or a child who usually with the aggrieved person or even unborn children.

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Unfortunately, there are known cases where parents will often bring an application for alleged family violence simply to prevent another parent from getting access. These types of applications are very inappropriate and the court is very cautious to exercise their powers where it is not called for. However, the court can include children if they do believe it is necessary and desirable to protect the child from domestic violence, or the child has been exposed to domestic violence (for example, they have seen, hear or otherwise experienced it).

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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.

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What is a temporary protection order and when can a court make it?

A Temporary Protection Order is an order made in the period before a court decides whether to make a protection order for the benefit of an aggrieved party.

Section 27 of the Domestic and Family Violence Protection Act 2012 (Qld) provided that a court can make a Temporary Protection Order if:

(a) the court adjourns a proceeding mentioned in section 44(a), (b) or (c) of the Act - the hearing of an application for a protection order or the hearing of an application for a variation of an order; or

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(b) the applicant for a protection order or the variation of an order has asked the clerk or court for the application to be heard before the respondent is formally served; or

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(c) an application for a temporary protection order is made by a police officer.

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A court may make a temporary protection order where it is satisfied that a relevant relationship exists between the aggrieved and the respondent and the respondent has committed domestic violence against the aggrieved. Note that this does differ from the third element of whether it is necessary and desirable and hence the hurdle is not as difficult. Further, a court only needs to consider evidence that is sufficient and appropriate having regard to the temporary nature of the order when deciding whether to make it.

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What conditions can the court order?

Every situation is unique and the courts will consider many different factors in deciding what conditions are most appropriate and should be imposed.

Section 56 of the Domestic and Family Violence Protection Act 2012 (Qld) provided that a court must impose the following conditions for the respondence when making a domestic violence order:

(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

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(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.

Further, even if the court does not exercise its power to impose the above conditions, the court is taken to have done so in any case.

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The intersection of police and domestic violence orders

The Queensland Police Service are often first responders to incidents of domestic and family violence, and therefore under the Domestic and Family Violence Protection Act 2012 (Qld), they have the power to issue a protection notice when attending such an incident. This is especially if they feel it is reasonably necessary and domestic violence has occurred.

The notice, when issues, if consider an application for a Protection Order at a later date in the Magistrates Court of Queensland. It will generally include certain conditions that the respondent is to be of good behaviour and not commit further acts of domestic violence.

The Queensland Police also have a right to impose conditions where necessary and desirable which prohibits a respondent from entering (or attempting to enter, or remain at) a stated place, or even approaching within a certain distance of that place. There are other conditions which they can impose including prohibiting the respondent from approaching (or attempting to approach) the aggrieved within a certain distance, or even contacting (or attempting to directly or indirectly contact) the aggrieved.

The Queensland Police also have the right and power to apply to the court for a Protection Order on behalf of an aggrieved person or even for a variation to an existing Protection Order.

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Rights in relation to the Queensland police protection notice

As a respondent, you have the right to consent to an order, ask for the proceeding to be adjourned to obtain legal advice, oppose the orders or do nothing at all (in which case an order will be made against you).

Whatever your situation is, you should get advice from our domestic violence lawyers so that you can be protected and the right conditions are made for your circumstance.

Although a Protection Order is a civil order, which means that you are not charged with a criminal offence unless you breach the order, it is nevertheless serious and important that you do not breach the conditions, or your could face serious penalties or offences or even jail time.

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Breaching a Protection Order

Section 177 of the Domestic and Family Violence Protection Act 2012 (Qld) sets out that it is an offence to breach the conditions of a Protection Order if the respondent against whom the 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 effect of this is a maximum penalty for the respondent of 60 penalty units ($137.85 per penalty unit as at September 2021 being a total of $8,271.00) or 2 years imprisonment.

Where the respondent has previously breached a protection order within the last 5 years of the second offence, the penalty changes to 120 penalty units ($137.85 per penalty unit as at September 2021 being a total of $16,542.00) or 3 years imprisonment.

If you are alleged to have breached a Protection Order, it is vital you contact us immediately and without delay. Our lawyers have extensive experience in these offences and will provide detailed advice around the charges, your rights, defences and options.

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What court will hear contravention or breach of protection order?

A contravention or breach of a Protection Order is a simple offence (a type of criminal offence) and will be heard by the Magistrates Court of Queensland.

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Defences to contravention or breaches of protection orders

There are many possible defences that our lawyers are aware of and can assist a respondent with.

Some defences include duress, necessity, insanity, identification issues, mistake of fact and otherwise.

It is not a defence, however, 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.

If you are wanting to defend the contravention or breach, you should contact us now.