Last updated 27 August 2018
A domestic violence order is a protection order made by the court to stop threats or acts of domestic violence against a person.
This order can stop someone:
- 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.
A domestic violence order application must be in the approved form and usually filed in the Magistrates Court (ss 32-33 Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act)). The application for a domestic violence order (Form DV01) can be obtained from the local Magistrates Court, police station or online from the Queensland Courts website. There is no filing fee. Once the application is filed, a date for the hearing of the application will be fixed and the court will provide the application to police to serve on the respondent (ss 33-34 DFVP Act).
Who can apply?
An application for a domestic violence order can be made by:
- the aggrieved
- a person who is authorised by the aggrieved in writing to apply for an order (e.g. a refuge worker)
- a police officer
- a person acting under another Act for the aggrieved (the DFVP Act gives the example of a guardian for a personal matter of the aggrieved under the Guardianship and Administration Act 2000 (Qld), or an attorney under an enduring power of attorney under the Powers of Attorney Act 1998 (Qld)).
Young people as applicants
A person under the age of 18 who is experiencing domestic violence can apply or be a respondent for a domestic violence order in certain circumstances. They can apply for or be a respondent in an order if they are in an intimate personal relationship or an informal care relationship (but not a family relationship) (s 22 DFVP Act).
This means that children under the age of 18 cannot apply for a domestic violence order against their parents or other family members. Referrals to other agencies such as the Department of Child Safety, Youth and Women should be considered in these cases.
Police as applicants
A police officer must investigate domestic violence if they reasonably suspect that domestic violence has been committed (s 100(1) DFVP Act). If, after investigation, the police officer believes that domestic violence has been committed, they must consider whether it is necessary or desirable to take action to protect the person immediately (and in the longer term) from further domestic violence, and what is the most effective action to take. They may do any of the following:
- apply to the court for a domestic violence order to protect the aggrieved (s 100(2))
- apply to a court to vary a protection order
- issue a police protection notice
- take the respondent into custody
- apply to a magistrate for a temporary protection order
- take other action appropriate in the circumstances (e.g. taking the respondent to hospital for treatment).
How to apply
To be able to obtain a domestic violence order, a person needs to be able to show that:
- they are in a relationship covered by the DFVP Act (a relevant relationship)
- they experienced domestic violence by the respondent (as defined in the DFVP Act; see definition above)
- the protection order is necessary or desirable to protect them from domestic violence (s 37 DFVP Act).
In deciding whether an order is ‘necessary or desirable’, the court must consider the principles of the DFVP Act in s 4 whether:
- an intervention order has been made against the respondent
- there was any compliance or non-compliance with the intervention order.
Relationships covered by the DFVP Act
Three types of relationship are covered by the DFVP Act:
- an intimate, personal relationship (a current or former spouse, a parent of a child together, an engaged couple or a ‘couple’ relationship) (s 18)
- a family relationship
- an informal care relationship.
Intimate personal relationships
This category includes people who are married, separated or divorced, couples who have a child together and people who are living together or who have lived together as a couple (ss 14, 15, 17, 18 DFVP Act).
The court considers each relationship on a case-by-case basis, and in some circumstances it can include couples who have not lived together (e.g. couples who have formed an online or distance relationship and have daily contact with each other via social media and/or telephone).
A family relationship exists between two people if one of them is or was related to the person by blood or by marriage (s 19 DFVP Act). Examples of family relationships include a spouse, a child, a parent, a sibling, a grandparent, an aunt or uncle, a nephew, a cousin, a half-brother or a mother-in-law. The DFVP Act also accepts that some people have a wider concept of ‘relative’ such as Aboriginal and Torres Strait Islander people, members of some non-English speaking backgrounds or people with particular religious beliefs.
Informal care relationship
An informal care relationship exists where one person is dependent on the other person (a carer) for help in aspects of their daily living such as shopping, cooking, dressing, showering or arranging medical appointments. An informal care relationship does not exist when the carer is paid by the person, however, a person receiving a carer payment from the government can be part of an informal care relationship (s 20 DFVP Act).
The need for protection
In order to obtain a domestic violence order, the applicant must prove that the order is necessary or desirable to protect a person from future domestic violence (s 37(1)(c) DFVP Act). The court is directed to determine whether an order is necessary or desirable by referring to the objects and principles for administering the DFVP Act (s 37(2)(a)(i)) (see Objects of the Domestic and Family Violence Protection Act). The court must also take into account if a previous intervention order has been made against the respondent, and whether the respondent has complied or failed to comply with the order. However, a court must not refuse to make a protection order merely because the respondent has complied with a previous intervention order. The most important aspect to consider is whether there is extensive evidence to show that the risk of future domestic violence is significant in all circumstances. If the risk is deemed to be significant, then to make a domestic violence order is necessary and desirable. For more information on how judges considered this issue see the cases GKE v EUT  QDC 248 and TJA v TJF  QDC 244.