Domestic and family violence comes in many forms and is not limited to physical violence. Until recently it was commonly accepted that domestic violence was limited instances of physical or sexual abuse and or threatening behaviour, however it is important to understand that some forms of domestic violence do not ever leave a physical mark. Domestic violence may also include emotional, psychological or financial/economic abuse and these too have serious and lasting effects on a person’s life and well being.
What are we dealing with?
The Domestic and Family Violence Protection Act 2012 defines domestic violence as any action, conduct or behaviour of a person in a relevant relationship that “controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing” or the wellbeing of another.
The Act gives some specific examples of common behaviours that would constitute controlling or dominating behaviour and thus warrant protection under the Act. Such domestically violent behaviours may include:
- causing personal injury to a person or threatening to do so;
- coercing a person to engage in sexual activity or attempting to do so;
- damaging a person’s property or threatening to do so;
- depriving a person of the person’s liberty or threatening to do so (including financial dependence or isolation);
- threatening a person with the death or injury of the person, a child of the person, or someone else;
- threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;
- causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;
- unauthorised surveillance of a person;
- reading a person’s SMS messages
- monitoring a person’s email account or internet browser history
- monitoring a person’s account with a social networking internet site
- using a GPS device to track a person’s movements.
Domestic violence can be as varied and unique as a relationship, but the one thing that all domestically violent relationships have in common is the need for one party to exert undue control and dominance over another in one form or another. This may be overt or subtle.
What is a relevant relationship?
Under the Act you may apply for a Domestic Violence Protection Order if you are experiencing or at risk of experiencing domestic violence and are in a “relevant relationship”. Examples of relevant relationships under the Act include:
- a spousal relationship;
- an engagement relationship;
- a couple relationship
- a former spouse;
- parent and child;
- stepparent and stepchild,
- siblings;
- grandparents, aunts, uncles, nephews, nieces; and
- informal care relationships.
Obtaining a Domestic Violence Protection Order
If you are a person in a relevant relationship like one named above and you have or are at risk of suffering domestic violence or your children have, or are at risk of suffering, have been exposed to or at risk of being exposed to domestic violence, you may be able to make an application for a Domestic Violence Protection Order. The Court may make Temporary Orders or Final longer term Orders.
Domestic Violence Protection Orders are issued by the Magistrates Court. There are a few ways that you may seek an order. You may make the application yourself, you may contact the police and they may make the application for you or you may have your lawyer make the application on your behalf. If the Protection Order is not urgent it is a good idea to seek legal advice before making the application to ensure that you have taken appropriate and necessary steps to protect yourself and your children and to ensure that you are accessing the right process.
The general application process for final Orders requires that the respondent be notified of your application before the Order is made and given the opportunity to respond. There will then be a court date that you attend and the Court will decide your application.
If the Protection Order is urgent (and you believe that your safety is currently at risk and the normal process will not be sufficient to provide you adequate protection), you may make an application for a Temporary Protection Order. When you are seeking an urgent Temporary Protection Order, you sometimes make your application and attend Court before the respondent is notified. Remember that this is only temporary order and you will be given a second court date to attend and your application for ongoing protection will be assessed then and the respondent given the opportunity to agree to the Order being made or respond, prior to the Order being made.
Defending a Domestic Violence Protection Order
Domestic Violence Applications are treated very seriously by the Courts in Australia. Once an Order is in place (temporary or final), the terms set down in it must be followed. As explained above, the terms of the Order ordinarily places limits on the respondent’s behaviour. If the terms of the Order are not followed, this will result in breach of the Order and the police can charge the respondent with a criminal offence. A criminal offence carries severe penalties, which can include a term of imprisonment. The behaviours set out in the terms of the Order are not ordinarily considered to be criminal behaviour, however, because they are contained within the Order issued by a Court, a breach of those terms may result in criminal sanctions.
There are circumstances where simply agreeing and consenting the Order may be the best approach, even if you disagree with the allegations contained within the Order. This is called “consenting without admission”. Even if you agree with the Order however, it is a good idea to seek legal advice about the terms of the Order. It is important that you are represented and adequately provided the opportunity for input about the terms that are included in the Order.
However, there are also circumstances when you should disagree with the Order being made. You may be pressured to concede, but if you disagree with the Order, you will have to go to the Magistrate Court and contest the Order. The Court will then set down a hearing date (which can sometimes be months later) but you will need time to prepare your case. You can then make important choices about what evidence and documents, such as photographs and doctors’ reports, you are going to put before the Court and who you should subpoena as witnesses (if any) in order to support your story. It may also be necessary to put your side of the story into an affidavit (which is a sworn statement).
Ultimately, the Court will decide on whether or not to make an Order and on what terms once it has heard all the evidence. It is strongly recommended you seek legal advice before opposing an Order.
What will the Order say?
If a Domestic Violence Protection Order, whether temporary or a “final long term”, is made the Court will Order that:
- the respondent must be of good behaviour and must not commit domestic violence or associated domestic violence; and
- if a child of the aggrieved, or a child who usually lives with the aggrieved, is a named person in the order, the respondent must not expose the child to domestic violence; and
- the respondent must comply with any other conditions imposed by the court and stated in the Order.
The Court can also make extra conditions in circumstances that warrant it including Orders that restrict them from coming within a certain distance of another person or a particular location, contacting the person or publishing comments about the person.
What about my children?
In addition to section 28 discussed above which prohibits acts of “associated domestic violence” the Court may also name, “in a domestic violence order, a child of the aggrieved, or a child who usually lives with the aggrieved if the court is satisfied that naming the child in the order is necessary or desirable to protect the child from:
- associated domestic violence; or
- being exposed to domestic violence committed by the respondent.
This means that if your children have seen, heard or in some way witnessed or are likely to witness domestic violence they may be named in the Protection Order with you.
If you are pregnant it is also possible under the Act to have the Domestic Violence Order apply to your child when they are born whether or not the respondent is the Father of your unborn child.
Publishing details of Domestic Violence Proceedings
Naming people involved in domestic violence has become an increasing trend as social awareness increases around the seriousness of domestic violence and its impact on victims, their families and the wider community.
This trend has been fueled by social media and the speed at which information can be communicated and published to wide cross sections of the community with a click of a button.
However, before you take it upon yourself to hold someone accountable for wrongs you believe have been committed, consider this:
Section 159 makes it a criminal offence to publish;
- Information given in evidence in a proceeding under the Act in a Court; or
- Information that identifies, or is likely to lead to the identification of a person as-
- i) A party to a proceeding under the Act; or
- ii) Witness in a proceeding under the Act.
This means, despite any feelings you may have to the contrary, you are prohibited by law from sending, communicating, posting or causing material to be sent, communicated or posted to any other person that relates to domestic violence proceedings. This section specifically relates to material that contains evidence used in Court or that identifies any of the parties to the proceedings (including the Respondent).
The following are examples of the types of conduct that are prohibited by the Act. You may not communicate material that is likely to identify a party to the proceedings or that contains evidence used in the proceedings by;
- Written or electronic mail, notes, correspondence, notices or other written communication;
- Visual representations including posters or signage;
- Verbally communicate the information to another personally;
- Audio/visual recordings or broadcasts, including, but not limited to podcasts, vlogs, radio, youtube, audio message, or television;
- Social media message, post, broadcast, update or image.
A Domestic Violence Protection Order is not a criminal conviction against the alleged perpetrator it is a Civil Order. However, Under the Act, the conduct mentioned above is a criminal offence and is punishable by a maximum of 100 penalty units or 2 years imprisonment.
