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 continue for any period of time the court considers necessary and desirable to protect the aggrieved but, if not expressly stated in the order, for five years after the day the order is made. The period of time can be less than five years only if the court is satisfied there are reasons for doing so, and the court must give reasons for doing 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, or not to oppose, the court making or varying a domestic violence order—this is referred to as an order by consent (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).
A court can also make an intervention order when it is making or varying a domestic violence order.
An 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). The court can only make an intervention order if it is satisfied there is an appropriate program or counselling available at a reasonably convenient location to the respondent.
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 or named person for a period of time not exceeding 24 hours
- a no-contact condition (s 107A). In addition to the above requirements, this condition also requires the respondent to not locate the aggrieved’s whereabouts if unknown to the respondent
- an ouster condition (s 107B). This condition prohibits the respondent from approaching or entering the stated premises. A return condition (s 107C) allows the respondent under police supervision to return to the premises to recover personal property.
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 three years imprisonment or 120 penalty units (presently $130.55 per unit or $15 666). Police also have the power to arrest a person without a warrant for breaching a police protection notice.