FAMILY LAWYERS AND DOMESTIC VIOLENCE
1. Aggrieved – Is the person who made the application alleging domestic violence,
2. Respondent – Is the person who is alleged to have perpetrated domestic violence against the aggrieved.
3. Domestic and Family Violence Act 2012 (QLD) means the Act from here on.
Under the Act the court will consider three (3) factors before deciding whether to make a protection order:
1. Is there a relevant relationship?
Under the Act, a relevant relationship includes:
(a) Intimate personal relationship, or
(b) A family relationship, or
(c) An informal care relationship.
What is an intimate personal relationship?
Intimate personal relation includes being a couple whether married/defacto or engaged.
What is a family relationship?
Family relationships include siblings, parents, in laws, or direct family members on both sides.
What is an informal care relationship?
An informal care arrangement is between 2 people where one is dependent on the other person. It is common where people are elderly. An informal care relationship does not exist between a child and parent or where the is a commercial care agreement.
2. Has there been an act or acts of domestic violence?
The definition of domestic violence is broad. Behaviours by a person towards another person in a relevant relationship that is physically/sexually abusive, emotionally, or psychologically abusive, economically abusive or dominates the person is considered domestic violence.
3. Is it necessary or desirable to make an order?
To put it simply, the court will decide whether there is a risk of domestic violence being committed in the future. The court considers things such as:
(a) Are there any previous protection orders, or a history of domestic violence?
(b) What contact the parties will have going forward? Are there children involved?
(c) Does the respondent have the capacity to understand the requirements of a protection order and the consequences of breaching the order?
What is associated domestic violence?
Associated domestic violence is where another adult or child indirectly experiences domestic violence.
I have filed an application – what next?
The court will provide the application to the police to serve it on the respondent. This can take time, particularly when the respondent’s whereabouts are not known, or they are being evasive.
What happens at Court?
It is common for an application for a protection order not to be served on a respondent at the first mention. In this case, it is likely the court will make a temporary protection order. The order will be served by Police along with the application.
When the respondent appears before the court, the respondent will need to tell the court whether:
(a) An adjournment is required to obtain legal advice, or
(b) Consent without admission to an order being made, or
(c) Contest the Order being made.
What happens when an order is contested?
The court will likely make directions that each party file and serve evidence in the form of an affidavit. At a trial, each party can be cross-examined (this is where questions are asked about your evidence).
What happens if the temporary order or final order is breached?
Firstly, the respondent is the party that needs to comply with the order. If the respondent breaches the order police should be called.
Will I have a Criminal Record?
An application for a domestic violence protection order is a civil matter. However, it becomes a criminal matter if a temporary or final order is breached. Penalties for breaching an order can include fines, good behaviour bond or imprisonment.
It is important to know if you are a respondent to a protection order it is a mandatory requirement that you forfeit any firearms licence.