Last updated 20 February 2017
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 DV1) 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 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 for a domestic violence order in certain circumstances. They can apply for 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. Referrals to other agencies such as the Department of Communities, Child Safety and Disability Services 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 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)
- experiencing domestic violence (as defined in the DFVP Act; see definition above)
- in need of protection (s 37 DFVP Act).
Relationships covered by the DFVP Act
Three types of relationship are covered by the DFVP Act:
- an intimate, personal relationship (someone who is married, engaged, in a de facto relationship, in a civil relationship or in a dating relationship)
- a family relationship (a parent, former parent, a child or a relative)
- an informal care relationship (where one person is dependent on the other person for help in an activity of daily living).
Intimate personal relationships
This category includes same-sex couples, 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 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.
Who is protected by a domestic violence order?
A domestic violence order can also protect other people who have been affected by the violence. People who can be named in and protected by an order include:
- a child of the aggrieved
- a child who usually lives with the aggrieved (e.g. a child who spends time with the aggrieved on a regular or on-going basis)
- a relative of the aggrieved
- an associate of the aggrieved (e.g. their new partner, work colleague or friend) (s 24 DFVP Act).
If a person is included on the order they are called a ‘named person’. The same conditions that apply to protect the aggrieved will also apply to the people who are named on the order.
The court may name a relative or associate of the aggrieved if it is satisfied that naming the person is ‘necessary or desirable’ (see above) to protect that person from domestic violence.
Naming a child on an order
A court can name a child of the aggrieved or a child who usually lives with the aggrieved in a domestic violence order to protect the child from associated domestic violence or being exposed to domestic violence by the respondent (s 53(b) DFVP Act). Unborn children can also be named on the order. The order will take effect when the child is born (s 67 DFVP Act).
The Act states that a child is exposed to domestic violence if a child:
- sees or hears an assault
- overhears threats of physical abuse
- overhears repeated denigration
- comforts a person who has been abused
- observes bruises or injuries to another person
- cleans up property that has been damaged
- is present when police attend a domestic violence incident.
The court is required to consider naming children in a domestic violence order (s 54 DFVP Act) even if the parties have not requested that the children be named or where the respondent does not agree to the child being named. The court has the power to obtain information from the Department of Communities, Child Safety and Disability Services if the court considers that the department may have information that will assist the court in making a decision about whether to name the child (s 55 DFVP Act).
If a child (of the aggrieved and respondent) is named on the domestic violence order, the conditions on the order can be tailored to allow for the respondent to see the child pursuant to a family law order, or by written agreement between the parties.
The Family Law Act 1975 (Cth) (Family Law Act) now also recognises that a child is exposed to family violence in these circumstances.
Types of orders
Section 23 of the DFVP Act states that a domestic violence order is either a:
- protection order (an order made once a final decision by the court has been made)
- temporary protection order (an order made before a court decides whether to make a (final) protection order).
A protection order can be made for a period of up to two years. This period can be increased if the court thinks there are special reasons to do so (s 97 DFVP Act).
Urgent orders may be made to protect the aggrieved even if the respondent is not present in court or is not notified about an application for a domestic violence order (ss 23(4), 27(b), 40 DFVP Act). These orders are described as ex parte orders (i.e. the order is considered by the court with only one party (the aggrieved) present). These types of applications occur where the serious nature of the allegations in the application warrant an order being made prior to the respondent being served and knowing about the application.
The aggrieved is required to establish that an urgent order is necessary or desirable.
The respondent may choose to agree to the court making a domestic violence order—this is referred to as a consent order (s 51 DFVP Act). The respondent does not have to admit to the facts in the application or agree with the aggrieved’s side of the story for the court to make consent orders (s 51(1)(c) DFVP Act).
In order to make an order by consent, the court must be satisfied that a relevant relationship exists between the aggrieved and the respondent (s 51(1)(a) DFVP Act). The court does not need to be satisfied that domestic violence has occurred or that the order is necessary or desirable to protect the aggrieved from domestic violence (s 51(1)(b) DFVP Act).
The court may refuse to make or vary a domestic violence order by consent if the court believes the making or varying of the order may pose a risk to the safety of an aggrieved, any named person or any child affected by the order (s 51(6) DFVP Act).
If a police officer is making an application for a domestic violence order with the consent of the respondent, the consent of the aggrieved is usually also required (s 51(3) DFVP Act). The consent of the aggrieved is not required if a police officer is acting on behalf of the aggrieved, the aggrieved is not present in court and cannot be contacted to give the consent and the police officer reasonably believes that the order promotes the safety, protection and wellbeing of the aggrieved, named person or any child affected by the order (s 51(4) DFVP Act).
Voluntary intervention orders
A court can also make a voluntary intervention order when it is making or varying a domestic violence order.
A voluntary intervention order requires the respondent to attend an approved intervention program and/or counselling (s 69 DFVP Act) to address the respondent’s violent behaviour. This order can only be made with the respondent’s consent (s 71 DFVP Act). Appropriate programs or counselling must be available at a reasonably convenient location.
Police protection notices
Section 101 of the DFVP Act provides the police with the power to issue a police protection notice. A police protection notice is made when police attend a place where domestic violence is occurring or has occurred. If the respondent is present, they can issue a police protection notice to the respondent. This notice immediately requires the respondent to be of good behaviour towards the aggrieved and any named person who is an adult, and not commit domestic violence. If the named person is a child, the respondent must also not expose the child to domestic violence. If the attending officers believe it is reasonable and necessary to protect the aggrieved from domestic violence, they may include a 24-hour cool-down condition on the notice (s 107 DFVP Act). This condition requires the respondent to leave the home and not contact the aggrieved for a period of time not exceeding 24 hours. In imposing this condition, the officer must consider whether the respondent has suitable accommodation for the period and take reasonable steps to ensure the respondent has access to temporary accommodation.
Prior to issuing the notice, the police officer must obtain approval from a supervising police officer (s 102 DFVP Act) and also reasonably believe that:
- the respondent has committed the domestic violence
- there is no current police protection order or domestic violence order in place between the aggrieved and the respondent
- the notice is desirable or necessary to protect the aggrieved
- the respondent should not be taken into custody (s 101 DFVP Act).
After the police protection notice is made, a copy of the notice must be filed by the police officer at the local Magistrates Court (s 111(1) DFVP Act). Filing of the notice is taken to be an application for a domestic violence order made by a police officer. Where a notice has been issued and an order is then made in the court, the notice remains in force until the order is served on the respondent and becomes enforceable.
Breach of the police protection notice is an offence with a maximum penalty of two years imprisonment or $7068. Police also have the power to arrest a person without a warrant for breaching a police protection notice.
Varying, changing and ending a domestic violence order
The aggrieved, the respondent, a named person, an authorised person, a person acting under another Act or a police officer may make an application to vary a domestic violence order. Variations may be made to conditions, duration of or persons named on the order (s 91 DFVP Act). A court can also vary a domestic violence order on its own initiative.
Before varying a domestic violence order, the things that the court must look at include why the order was made, any findings of fact that were made by a magistrate when the order was made and whether there has been compliance with any previous voluntary intervention order. It must also consider the safety, protection and wellbeing of the people who are protected by the order, the wishes of the aggrieved and, if the variation is to reduce the duration of the order, that there are reasons for doing so (ss 91-92 DFVP Act). Among other things, the court must be satisfied that the aggrieved has not been pressured into agreeing to the variation (s 92(2)(c) DFVP Act).
When a court can make or vary an order of its own accord
In child protection proceedings
The Childrens Court can make a domestic violence order when it is dealing with a child protection matter (s 43 DFVP Act). It can make a protection order against a parent of a child for whom an order is sought if:
- it is satisfied that a protection order could be made against that parent (based on the evidence and on the requirements of the DFVP Act as outlined above) and
- the person named as aggrieved is also a parent of the child who is subject to the application for a child protection order.
An existing domestic violence order can be varied during these proceedings. The court may consider extending the current order or varying its conditions to suit the circumstances of the case.
The court can make an order of its own volition or on the application of a party. An example may be a separate representative in a child protection matter applying for an order. Alternatively, the Department of Communities, Child Safety and Disability Services could apply.
The court cannot make an order unless each party to the child protection proceeding has been given a reasonable opportunity to present evidence, and prepare and make submissions. The court can make or vary an order during a child protection hearing or it can adjourn to hear it at a later date.
Making or varying an order against an offender
When a court (sitting in its criminal jurisdiction) convicts a person of an offence involving domestic violence, it can, of its own initiative, make a protection order against the offender. It must be satisfied that a protection order could be made against the offender pursuant to s 37 of the DFVP Act.
If a protection order is already in force, the court must consider the order and whether it needs to be varied.
Again, the court must give the opportunity for the offender, the aggrieved (if possible) and the prosecuting authority to present evidence, and prepare and make submissions (see s 42 of the DFVP Act for further detail).
Conditions of a domestic violence order
A domestic violence order restricts the behaviour of the respondent towards the aggrieved and other people who are named on the order.
There are certain conditions that must be included in all domestic violence orders. These conditions are described as ‘standard conditions’ (s 56 DFVP Act). The standard conditions are that the respondent:
- be of good behaviour and must not commit domestic violence or associated domestic violence towards the aggrieved
- be of good behaviour towards any adult named person
- not commit associated domestic violence against any adult named person
- be of good behaviour towards a named child
- not commit associated domestic violence against the named child
- not expose the child to domestic violence.
In addition to the standard conditions, the court can impose extra conditions that it considers necessary in the circumstances and desirable in the interests of the aggrieved, named persons or the respondent themselves. The principle of paramount importance to the court must be the safety, protection and wellbeing of people who fear or experience domestic violence, including children (s 57(2) DFVP Act).
Examples of the types of the conditions that can be included in a domestic violence order are (according to the DFVP Act):
- prohibiting the respondent from approaching, contacting or locating the aggrieved or attempting to do any of these things
- prohibiting the respondent from being present at a place associated with a child (e.g. a school or kindergarten) (s 58)
- requiring the respondent to return property to the aggrieved or allowing the aggrieved to recover their property and/or to access their home to recover their property (s 58)
- prohibiting the respondent from remaining at or entering or attempting to enter stated premises. This can include premises that the respondent has a legal or equitable interest in (an ouster condition), where the aggrieved or respondent live together or previously lived together and where the aggrieved or a named person lives, works or goes to frequently (ss 63–65).
If a domestic violence order is made, the respondent is not permitted to possess a weapon or a weapon’s licence under the Weapons Act 1990 (Qld). The domestic violence order will inform the respondent that their licence has been revoked and provide information about the surrender of their weapons (pt 3 div 8 DFVP Act). This also applies to respondents who work with weapons such as police officers and defence force personnel.
A weapon includes a firearm, martial arts weapon or knuckle-duster. It also includes anything that the respondent has used or threatened to use in committing an act of domestic violence against the aggrieved such as a cross bow, a spear gun, a dog or a baseball bat, and the court may prohibit the respondent from possessing such an item during the length of the order (s 81 DFVP Act).
Police powers to take a person into custody
Police can take a person into custody while investigating a matter (ss 116–128 DFVP Act). This can occur where they reasonably suspect that a person has committed domestic violence and another person is in danger of personal injury by the person, or property is in danger of being damaged by the person.
Police can detain a person for up to four hours (or eight hours if the respondent is intoxicated to the extent that they are incapable of understanding any document given to them such as the application for a protection order). A police officer can also apply for an order extending the detention period.
A police officer must, as soon as reasonably practicable after a person is taken into custody, prepare an application for a domestic violence order on which the person in custody is named as the respondent (s 118 DFVP Act).
Registering a domestic violence order in another state, territory or New Zealand
In the event that an aggrieved moves to another Australian state, territory or to New Zealand, they can apply to register their order in a Magistrates Court (or equivalent) in that other place. Once registered, the domestic violence order has the same effect as it did in the place where it was made originally; it provides similar protection for the aggrieved and can be enforced.
To register an interstate order in Queensland, the aggrieved must file an Application for Registration of an Interstate Order (s 170 DFVP Act). There is no cost involved in the registration. The clerk at the court registry will register the order. No court appearance is necessary, and there is no need to notify the respondent.