Domestic Violence and The Law
Author: Shelley Johnson, Senior Associate
The prevalence of domestic violence is an issue that is serious and widespread in our community. In Queensland alone in a one-year period, eleven people died as a result of domestic violence.
The following statistics, (taken from the Australian Bureau of Statistics and the Australian Institute of Crimonology) are sobering:
- On average, one woman a week is murdered by her current or former partner.
- 1 in 3 Australian women have experienced physical violence since the age of 15.
- 1 in 5 Australian women has experienced sexual violence.
- 1 in 6 Australian women has experienced physical or sexual violence by a current or former partner.
- 1 in 4 Australian women has experienced emotional abuse by a current or former partner.
- Australian women are nearly three times more likely than men to experience violence from an intimate partner.
- Australian women are almost four times more likely than men to be hospitalised after being assaulted by their spouse or partner.
In a one-year period from 2020 to 2021 a total of 28,797 applications for Domestic Violence Orders was lodged with Queensland Magistrate’s Courts. A further 12,016 applications were filed to vary existing Domestic Violence Orders. The applications were overwhelmingly made by women although a number of men also filed applications.
It would seem that the actual number of applications made are just the tip of the iceberg. Queensland police data shows that from 1 July 2020 to March 2021 officers responded to 113,779 domestic and family violence occurrences.
DOMESTIC VIOLENCE ORDERS
A person who claims that they have suffered from an act of domestic violence (“the aggrieved”) can make an application to a Magistrates Court for a Domestic Violence Order. This is an order issued by a Magistrate which seeks to prevent acts of violence or threatening behaviour.
In order to obtain a domestic violence order, the aggrieved must prove that the order is necessary or desirable to protect them from future domestic violence. The court must consider whether an order is necessary or desirable by referring to the objects and principles of the Act (referred to below). The most important aspect to consider is whether there is evidence to show that the risk of future domestic violence is likely. If the risk is deemed to be significant, then it becomes necessary to make a domestic violence order.
This order may prohibit the person the order is made against, (“the Respondent”) from taking certain actions e.g.:
- approaching another person at their home or workplace
- staying in a home they used to share with the other person
- approaching another person, their relatives or their friends, if named in the order, within a certain distance, such as 100 metres
- going to a child’s school or day care centre.
An application may also seek to include certain other people, called “named persons”, who the aggrieved seeks to be included under the order, such as children, relatives and/or friends of the aggrieved.
A breach of a Domestic Violence Order can result in various sanctions being imposed on the Respondent, including imprisonment. While a Domestic Violence Order is a civil matter, a breach of that order may well become a criminal offence with serious consequences.
It is common for a temporary order to be made initially, if the magistrate considers the application has merit. If the Respondent opposes the making of a final order, the matter will be set down for a contested hearing, known as a trial. If a final order is made, it can last for up to five years.
Police also have the power to issue what is known as a “police protection notice” which comes into effect immediately. They can issue such a notice if they believe it is desirable to take action to immediately protect a person from further acts of domestic violence.
DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT 2012
The main source of law dealing with domestic violence in Queensland is the Domestic and Family Violence Protection Act 2002 (“the Act”).
The stated objectives of the Act are to:
- Maximise the safety, protection and wellbeing of people who fear or experience domestic violence and to minimise the disruption in their lives;
- Prevent or reduce domestic violence and the exposure of such violence to children; and
- Ensure that individual who commit domestic violence are held accountable for their actions.
The paramount principle of the Act is the safety, protection and wellbeing of people who fear or experience domestic violence, including children (s.4(1)).
The definition of what constitutes “domestic violence” is wide. Section 8 of the Act states that domestic violence means behaviour by a person towards another person (in a relevant relationship) that is:
- Physically or sexually abusive; or
- Emotionally or psychologically abusive; or
- Economically abusive; or
- Is threatening or coercive; or
- In any other way controls or dominates a person and causes that person to fear for their safety or wellbeing.
Domestic violence that extends beyond the aggrieved to other parties, is known as “associated domestic violence” and may involve a child, relative or friend of the victim.
FAMILY COURT ORDERS
In cases where parties are engaged in Family Court proceedings, a domestic violence order should not, in theory, be inconsistent with any orders made by the Family Court.
However, in practical terms a domestic violence order that includes a non-contact order, can effectively prevent a parent from having any contact with their children until further Orders are made. In the meantime, any attempt by the parent to contact their children may constitute a breach of the order, with serious consequences.
A temporary Domestic Violence Order can be made very quickly and without the other side having any opportunity to defend it. It may be months before the matter is tried before a Magistrate. It can also take many months to have a matter brought before the Federal Circuit and Family Court.
It is a difficult balance to strike between the rights and interests of competing parties to which there is no easy answer.
John McLaughlin
