By Laura Holdcroft, Solicitor at Gnech and Associates
23 July 2021
Domestic violence is a prevalent issue in our society, and is sadly experienced across all ages, genders, cultural groups and demographics.
If a person is experiencing domestic violence abuse, they can apply to the court for a protection order. Protection orders aim to protect parties (including children) who have been subject to domestic violence against any future acts of domestic violence.
Who can apply for a Domestic Violence Protection Order?
Under the Act, an application for a protection order can only be made by:
- an aggrieved; (aggrieved is the person that requires the protection)
- an authorised person for an aggrieved or a person acting for the aggrieved (e.g guardian under the Guardian Administration Act 2000 or an attorney under the Powers of Attorney Act for person with impaired capacity); or
- a Police Officer (who after investigations, reasonably believes domestic violence has been committed).
Three elements the court takes into consideration when making a protection order
There are three elements that the court must be satisfied of before making a protection order. These are:
- there is a relevant relationship; and
- there was an act of domestic violence; and
- a protection order is necessary or desirable.
1. What is a Relevant Relationship?
The first element is that the court must be satisfied that a relevant relationship exists between the aggrieved and the respondent. There are three types of relationships defined under section 13 of the Act which are:
- An intimate personal relationship
- A family relationship; and
- An informal care relationship
Under each of these, the legislation provides particular examples and further categories.
- Intimate personal relationship.
An “intimate personal relationship” includes a spousal relationship, an engagement relationship and a couple relationship.
- Family relationship.
A family relationship exists between 2 persons if 1 of them is or was a relative of the other (s19(1)).
Examples of an individual’s relative include a spouses’ child, step-child, parent, step-parent, sibling, grandparent, aunt, nephew, cousin, half-brother, mother-in-law or aunt in law.
- Informal care relationship.
An informal care relationship requires one person to be or to have been dependent on another person, a carer, for help in an activity of daily living such as dressing or personal grooming, preparing or assisting a person eating meals, shopping for a person’s groceries, or telephoning to make medical appointments for a person (s20(1)).
2. What are acts of domestic violence?
Section 8 of the Act defines acts of Domestic violence as behaviour that is:
- physically or sexually abusive; or
- emotionally or psychologically abusive (s11); or
- economically abusive (s12); or
- in any other way controlling or dominating, causing the second person to fear for his/her safety or wellbeing or that of someone else.
3. Necessary or Desirable
The third element that the court must be satisfied of when making a Domestic Violence Order is that the order is necessary or desirable to protect a person from future domestic violence (s37(1)(c).
The court has extensively considered the element of whether “a protection order is necessary or desirable.
In MDE v MLG & Queensland Police Service[1] Judge Morzone QCE DCJ expressed the view that the third element of whether “the protection order is necessary or desirable to protect the aggrieved from domestic violence” requires a three-stage process supported by a proper evidentiary basis;
- First, the court must assess the risk of future domestic violence between the parties in the absence of any order.
- Secondly, the court must assess the need to protect the aggrieved from that domestic violence in the absence of any order
- Thirdly, the court must then consider whether imposing a protection order is “necessary or desirable” to protect the aggrieved from the domestic violence.
What does a protection order mean?
When a Court makes a protection order, the order will be in place for 5 years (the standard duration) unless the court otherwise orders.
Under recent federal changes to the Domestic Violence provisions, any Protection Order that is made in Queensland (or other states) will be nationally recognised in all Australian states and territories, as well as in New Zealand. This means that if an order is put in place in in another state such as Victoria, and the order is breached in Queensland, the breach will still constitute a criminal offence.
A Domestic Violence order can also affect the respondent’s ability to hold a weapons licence and your eligibility to possess a firearm. This could be detrimental if a weapon is required for employment (eg. members of the Australian Defence Force or Queensland Police Service).
Legal Help
If you are experiencing Domestic Violence in a relationship, or are a named party in a Domestic Violence Application, it can be helpful to get legal advice to understand your rights and options moving forward.
Call 07 3558 1040 today to speak with someone from our experienced and understanding team of solicitors.
[1] [2015] QDC 151.
