Domestic Violence
Are you the respondent to a Domestic Violence Order (DVO) application?
An application for a domestic violence order is made under the Domestic and Family Violence Protection Act 2012. The main objects of this act are to maximise the safety, protection, and wellbeing of people (including children) who fear, experience or are exposed to domestic violence; prevent or reduce domestic violence and exposure of children to domestic violence; and, to ensure that people who commit domestic violence are held accountable for their actions
If you have been served with an application, organise a complimentary case assessment to work out what you can do next.
When May a Court Make a Domestic Violence Order?
Section 37 of the Act allows the Court to make a protection order against a person (the Respondent) for the benefit of another person (the Aggrieved) if the Court is satisfied of three elements:
Relevant Relationship
Section 37(1)(a) requires a relevant relationship to exist between the aggrieved and the respondent.
Acts of Abuse
Section 37(1)(b) requires the respondent to have committed domestic violence against the respondent. Domestic violence is defined in section 8(1) of the Act to include behaviour by a person to another in a relevant relation that is, but not limited to:
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- Physically or sexually abusive
- Emotionally or psychologically abusive
- Economically abusive
- Threatening
- Coercive
- Controlling or dominating
Necessary or Desirable
If a relevant relationship and acts of abuse can be demonstrated, a key question is whether or not an order will be necessary or desirable. A reason for this may be that the conduct was out-of-character and there was insignificant evidence to support a domestic violence order.
Section 37(1)(c) requires the protection order to be necessary or desirable to protect the aggrieved from domestic violence. The case of MDE v MLG & Queensland Police Service [2015] QDC 151 considered this element with a three-stage process:
- The Court must assess the risk of future domestic violence between the parties in the absence of any order;
- The Court must assess the need to protect the aggrieved from that domestic violence in the absence of any order; and
- The Court must consider whether imposing a protection order is necessary or desirable to protect the aggrieved from the domestic violence
What Evidence is Required to Establish a Protection Order?
In relation to a domestic violence application, section 145(1) of the Act provides that in a proceeding, the Court is not bound by the rules of evidence or any practices or procedures applying to courts of record and may inform itself in any way it thinks appropriate. In the case of RCK v MK [2018] QDC 181, His Honour said:
Although not bound by the rules of evidence, it is well settled that the court’s decision must arrive from relevant, reliable and rationally probative evidence that tends logically to show the existence or non-existence of the facts in issue. It is not enough to suspect or speculate that something might have occurred. Further, the seriousness of the allegations and the gravity of the consequences of the proceedings in a protection order being imposed also warrants the considerations drawn from Briginshaw v Briginshaw (1938) 60 CLR at 362. That is, the seriousness of the allegations in the case and the gravity of their consequences warrant that a higher degree of certainty be satisfied on the balance of probabilities.
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