Family and Defacto Relationship Law
Wills & Estates
Domestic violence or abuse (otherwise known as family violence) exists in some marriages and relationships. Sometimes the violence is long term (perhaps having occurred for many years) and continues after separation. Sometimes violence erupts while the parties are separating and emotions are running high, and only lasts a short time. Regardless of the length or level of the violence or abuse, if you are concerned about your safety and wellbeing, or that of your children or associated adults, you should consider taking action aimed at protecting yourself, your children and others close to you.
There is a misconception that “domestic violence” means physical violence. Whilst physical violence is certainly one form of domestic violence, there are many other types of domestic violence which can lead to the making of a protection order against the person who perpetrates the violence or abuse. They include verbal, emotional, mental and financial abuse. For instance, constant put-downs and belittling is domestic violence, as is restricting your access to money to pay for general living expenses, and preventing you from speaking with or spending time with family members and friends. Although domestic violence is largely perpetrated by men on women, it can also occur in same sex relationships and be inflicted by women on men.
If you are confronted with an immediate risk of physical harm, you should call “000”. If the danger is not immediate, but serious nonetheless, you can contact the Queensland Police Service to seek their assistance or contact a lawyer for advice about making a protection order application to a Magistrates Court under Queensland’s Domestic and Family Violence Protection Act 2012. Magistrates Courts have the power to make protection orders (commonly called domestic violence orders).
If the police form the view that your circumstances are such that you need protection, the police will most likely apply to the court for a protection order on your behalf. In that scenario, you are known as “the aggrieved”, while a police officer will be “the applicant”. The person who you want to be protected from is called “the respondent”. If the police are not willing to apply for a protection order on your behalf, you can file a private application. If you wish to do this, our experienced family law solicitor can represent you – from preparing and filing your protection order application through to the eventual final hearing of your application.
Before a Magistrates Court can make a protection order, it must be satisfied that the aggrieved and the respondent have a relationship which is covered by the Act. There are a number of different types of relationships which are provided for. The most notable relationships are those that exist between married or de facto couples (whether separated or not) and between two people who are the parents of a child. The Act also extends to some other relationships, including between two people who are the biological relatives of each other (e.g. adult siblings, adult children and their parents, cousins, aunts and uncles).
Domestic violence orders, both temporary and final, can include a range of conditions and restrictions. These include the mandatory condition requiring the respondent to be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved. Among other things, the restrictions can also prohibit the respondent from contacting the aggrieved (in person or through electronic means), from going near the aggrieved, or attending the aggrieved’s residence or place of employment/education.
Children or associates of the aggrieved can be named in a protection order as protected persons if there is a risk of the respondent committing violent acts against them as well, or a risk of exposing the children to domestic violence (e.g. verbally or physically abusing the aggrieved in the presence of the children).
If you are dealing with a violent or abusive situation, though the threat to your safety is not immediate, and you don’t know whether you have grounds to seek a protection order, please contact us for advice. Lindsay Woods, our family law specialist lawyer, is experienced in domestic violence matters and will support you and tell you what your rights and options are. If relevant, he can assist you to apply for a protection order. Call us now for an appointment to discuss your situation, or submit your enquiry online here.
When a protection order application is filed with the court, sometimes the respondent is not aware of the proceedings until after the first court date. If the first court date proceeds without the respondent being present, usually the police will serve relevant documents on the respondent shortly after the court date and he/she will be required to attend court on the next date (the adjournment date). Whether or not the respondent is present in court on the first date, the court will usually make a temporary protection order based on the untested allegations set out in the protection order application. This course is taken by most Magistrates out of an abundance of caution. They often feel that it is best to give the aggrieved some interim protection until the matter can be thoroughly dealt with – including the cross-examination of the parties and their witnesses at a final hearing if necessary.
As well as acting for victims of domestic violence, we also act for people named as respondents in protection order applications. If you are named as a respondent, you must attend court on the date and at the time directed. Otherwise, a protection order will probably be made against you and a warrant could be issued for your arrest. There are various options available to a respondent in dealing with a protection order application. One is to consent to the making of a protection order on a “without admissions” basis. Another is to oppose the application and have the case determined at a final hearing after each party files their affidavit material pursuant to directions made by the court. The parties and their witnesses must be available to be cross-examined at the hearing.
If you are served with a protection order application (and possibly a temporary protection order at the same time), you should obtain prompt legal advice. The consequences of a domestic violence order can be greater than you might think. For instance, it can have a bearing on future parenting arrangements for any of your children under 18 years of age. It could also have an impact upon your employment and it would revoke any weapons licence you may hold, leading to the surrender of any firearms you may own. Our family law lawyer has experience in representing respondents in domestic violence proceedings. Call us now for an appointment with Lindsay, or submit your enquiry online here.