Domestic Violence Orders 2018-06-28T14:51:30+00:00

Domestic Violence

In determining whether a protection order is necessary or desirable the court must have regard to the principles mentioned in section 4 of the Domestic and Family Violence Protection Act 2012 and if a respondent has previously been subject to a voluntary intervention order and subsequently breached that order, the respondent’s failure to comply with the voluntary intervention order.

Domestic Violence is defined as:

“…behaviour by a person towards another person with whom the first person is in a relevant relationship that is physically, sexually, emotionally, psychologically or economically abusive, threatening, 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 wellbeing or that of someone else.”

Section 37 of the Domestic and Family Violence Protection Act 2012 provides the court with the power to make a protection order as follows:

(1) A court may make a protection order against a person (the “respondent” ) for the benefit of another person (the “aggrieved” ) if the court is satisfied that—

(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.

Further, the term ‘a domestic relationship’ has the same meaning as in the Domestic and Family Violence Protection Act 2012 namely that:

A relevant relationship is an intimate personal relationship, a family relationship or an informal care relationship.

Intimate personal relationship

An intimate personal relationship is defined as:

  1. A spousal relationship; or
  2. An engagement relationship; or
  3. A couple relationship.

Family relationship

The Domestic and Family Violence Protection Act 2012 provides that a family relationship exists between 2 persons if 1 of them is or was the relative of the other.

A relative of a person is someone who is ordinarily understood to be or to have been connected to the person by blood or marriage.

Example: an individual’s spouse, child (including a child 18 years or more), stepchild, parent, step-parent, sibling, grandparent, aunt, nephew, cousin, half-brother, mother-in-law or aunt-in-law

Example:

  • the person who would be the individual’s mother-in-law if the individual was still in a spousal relationship with the person’s son or daughter
  • the person who would be the step-parent of the individual if the spousal relationship between the person and the person’s former spouse, the individual’s parent, had not ended
  • the individual’s step-siblings when the parent they do not have in common has died

Informal care relationship

An informal care relationship is defined as:

(1) An “informal care relationship” exists between 2 persons if 1 of them is or was dependent on the other person (the “carer”) for help in an activity of daily living.

Example:

  • dressing or other personal grooming of a person
  • preparing a person’s meals or helping a person with eating meals
  • shopping for a person’s groceries
  • telephoning a specialist to make a medical appointment for a person

(2) An informal care relationship does not exist between a child and a parent of a child.

(3) An informal care relationship does not exist between 2 persons if 1 person helps the other person in an activity of daily living under a commercial arrangement.

Example: The relationship between a person and a nurse who visits the person each day to help with bathing and physiotherapy is not an informal care relationship because the nurse visits the person under a commercial arrangement made between the person and the nurse’s employer.

When a protection order is necessary or desirable

In determining whether a protection order is necessary or desirable the court must have regard to the principles mentioned in section 4 of the Domestic and Family Violence Protection Act 2012 and if a respondent has previously been subject to a voluntary intervention order and subsequently breached that order, the respondent’s failure to comply with the voluntary intervention order.

The court also may consider a respondent’s overall compliance with a voluntary intervention order.

The principles in section 4 of the Domestic and Family Violence Protection Act 2012 are:

(1) This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.

(2) Subject to subsection (1), this Act is also to be administered under the following principles—

(a) people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised;

(b) to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act;

(c) perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;

(d) if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics;

Example:

  • women
  • children
  • Aboriginal people and Torres Strait Islanders
  • people from a culturally or linguistically diverse background
  • people with a disability
  • people who are lesbian, gay, bisexual, transgender or intersex
  • elderly people

(e) in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is most in need of protection should be identified;

(f) a civil response under this Act should operate in conjunction with, not instead of, the criminal law.

Temporary Protection Orders

In certain circumstances the court has the power to order a temporary protection order. This is an interim protection order that protects aggrieved’s and named persons whilst the court matter is awaiting finalisation. The court may order a temporary protection order if:

(a) the court adjourns a proceeding mentioned in section 44 (a) (adjourning the hearing of an application for a protection order) (b) (adjourning the hearing of the application to vary a protection order) or (c) (adjourning a proceeding where the court may make or vary an order on its own initiative or a proceeding where the Childrens Court may make or vary an order against a parent of a child); or

(b) the applicant for a protection order has asked the clerk of the court under section 36 for the application to be heard by the court before the respondent is served; or

(c) the applicant for the variation of a protection order has asked the clerk of the court under section 90 for the application to be heard by the court before the respondent is served; or

(d) a police officer applies for a temporary protection order under part 4 division 4.

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