Queensland - Protection Orders

What is a Protection Order?

Protection orders seek to prevent further violence from occurring rather than dealing with previous violence by way of punishment. Protection orders come under civil law with the potential for criminal action if there is a breach of a protection order.

Who does the Act cover?

The act covers:

bullet 

An intimate personal relationship (married, defacto, registered relationship, engaged, dating

bullet 

A family relationship ( a parent, or former parent, of a child, or your relatives

bullet 

An informal care relationship (where one person is dependent on the other person for help in an activity of daily living like dressing and cooking for them.

 

Under the Domestic and Family Violence Protection Act, the victim is know as the “aggrieved spouse” and the perpetrator of the violence is the “respondent spouse”. Relatives and associates of the abused Woman, including children, family friends and workmates who have been threatened, abused or harassed may also be protected. These people are known as “associates” and may be included under the Woman’s protection order if they have experienced “associated domestic violence”.

What behaviour is covered?

The Domestic Violence and Family Violence Protection Act defines domestic violence in the following way:

  • When someone is physically or sexually abusive to you, or
  • Is emotionally or psycholigically abusive to you, or
  • is economically abusive to you or
  • is threatening, or
  • is coercive, or
  • in any other way controls or dominates you and causes you to fear for your safety or wellbeing or that of someone else.
 

The police can take action to protect a Woman experiencing domestic violence and to prevent further violence under the Domestic and Family Violence Protection Act. The police are also directed under policy guidelines to make use of powers under other relevant acts, such as the Police Powers and Responsibilities Act, in terms of investigating a domestic violence incident. Even though the police have these powers to protect, investigate and prosecute in domestic violence situations, women do not always see the police using these powers. It is important that women have support to place pressure on police to use the powers they have. (Police domestic violence liaison officers).

Under the Domestic Violence (Family Protection) Act the police have the following powers:

bullet

If they suspect domestic violence is occurring they must investigate.

bullet

If they believe one person is in immediate danger they can take the other person into custody for up to 4 hours; they must also apply for a protection order for the aggrieved spouse during this time.

bullet

If the abuser is in custody they will be released on conditions decided by the watchhouse keeper within four hours if the application for a protection order has not been heard and decided, or sooner if a protection order is made.

bullet

If it is after hours and the police believe the Woman is in immediate danger they can get a protection order over the phone or by other means.

If the Woman has been assaulted or hurt, the police can charge the perpetrator with a criminal offence as well as taking out a protection order.

How does a Woman get a protection order?

Protection orders are made by Magistrates at Magistrates Courts. There is a protection order application form that needs to be completed detailing the history of the abuse and a recent domestic violence incident that has occurred. Under the legislation there re three different means by which a Woman can obtain an order – an application can be made by the Woman herself, by the police or by any authorised person.

A Woman as applicant

A Woman will need to get an application form from her local Magistrates Court or police station (she may also try her local domestic violence service or community legal centre).Application for a Protection Order

She should put in as much detail as she feels is necessary to make the court aware of the extent of her abuse. An extra page can be attached to her application if necessary.

You should describe every domestic violence incident that has happened, including:

  • when it happened
  • where it happened
  • what happened
  • how it happened
  • who was there
  • any injuries you suffered and
  • how you felt - eg did you feel threatened, fearful or scared.

She will need to make the court aware of:

bullet

any weapons that the respondent has access to;

bullet

details of people she wants covered by her order such as family and friends;

bullet

and how she wants to be protected that is, what extra conditions she needs to have included on the order to ensure her safety.

 

You must sign the declaration on the form in front of a Justice of the Peace or a solicitor. When you sign the form you are indicating that the details are true and accurate. All magistrates courts have a justice of the Peace.

Lodge the Application

You must lodge your completed application form at the counter of your magistrates court. There is no charge for lodging your form.

 

What happens next?

A copy of the Woman’s application will be served on the respondent by the police.

If a Woman does not want to be found by her ex-partner it is important that she does not write her current address on the application.

A post office box address for correspondence can be used.

Alternatively she can attach a note to the application with her address on it. The court then has her details but they are not given to the respondent spouse. The Woman should speak to the clerk of the court regarding this option.

If a Woman herself is the applicant she can get a solicitor or a police prosecutor to represent her in court.

Police Prosecutors are located at Magistrates Courts and can present the aggrieved spouse’s application to the court. If a Woman wishes to have the police prosecutor represent her she will need to tick this on the protection order application. Generally the Woman will only be able to speak to the police prosecutor about her situation and any other information not included on her application just prior to going into court.

Some women may prefer to have a solicitor represent them, particularly if the matter goes to a hearing and if the respondent has a solicitor. Some women may be eligible for legal aid for a solicitor to represent them in court.

The police as applicant

The police can apply for a protection order. Usually this happens when they have attended an incident and believe that domestic violence has occurred. Some women have reported a sense of relief when the police applications are made. This removes the onus on them to take their partners to court when there is fear or retaliation and often a sense of betrayal.

Even when there is a police application for a protection order, many women still face ongoing harassment and pressure from their partners to drop the order. In most instances where it is a police application the Woman has no power to stop the order from proceeding. The police are unlikely to withdraw an application fro an order if they believe a Woman is in some danger.

If the police make an application for a protection order, they will go to court and present the case.

An authorised person as applicant

A Woman can authorise any person, for example a welfare worker, family member or friend to make the application for a protection order. An authorised person must have written authority of the aggrieved spouse to represent her at the court hearing. If the Woman wishes to have an authorised person take out the order on her behalf she should tick on the application form that she does not need the police prosecutor to represent her. This option is not often chosen, as it requires some knowledge and experience with protection order proceedings. If it is necessary for workers to take on this role, it is important to try and get as much information as possible about the court process. Make contact with a domestic violence court assistance worker or a community legal centre to get advice on how best to proceed.

Going to court

Once an application has been lodged, a time will be set down for what is called the “mention date”. The police will arrange for the respondent to be served with a summons (including a copy of the application) to appear in court on that date. If a solicitor or police prosecutor is representing the Woman it is normal practice for her representative at court to see if they can agree on suitable conditions for a protection order. Some women may be pressured into agreeing to withdraw the protection order application in return for the respondent signing an undertaking that they will basically be of good behaviour towards the aggrieved. Women should be aware that such undertakings do not have any legal weight and there are no penalties if the agreement is broken. Seeking some time to get a second opinion or to think over this proposal may have more positive outcomes for women in this situation.

The possible outcomes of a mention date are:

bullet

An adjournment to seek legal advice;

bullet

Consent to an order;

bullet

Or contesting an order.

An adjournment to seek legal advice

If this is the first time the matter has gone to court, this will be granted and a new date will be set for all parties to return to court. An adjournment will also be granted if the respondent has not yet been served with a summons.

Consent to an order

This is called a “consent order” and the Woman will not need to give evidence at a hearing. Usually the conditions are negotiated before entering the courtroom. If both parties agree to the conditions, then the Magistrate can made the order in the terms put forward. Women do not have to consent to an order which does not provide enough protection.

Contesting of the order

This means the respondent wishes to argue against the order and the Woman will need to return for a hearing. At the hearing stage it is best to have an experienced police prosecutor or solicitor acting for the Woman.If the application is adjourned or a hearing date is set for the future, a Woman can ask the Magistrate to make a temporary order to cover her in the meantime.

Problems with serving

If a Woman goes to court for the mention date and the respondent spouse has not been served with a summons by the police, the matter will be adjourned and the Magistrate may grant or extend a temporary protection order. When there have been several unsuccessful attempts by the police to serve the respondent, because they may be evading the police, the Magistrate may suggest to the Woman that her application may not succeed and that she may need to look at other safety strategies. However, when the respondent has been served and does not attend the court the Magistrate may decide to make a full protection order in the respondent’s absence.

At the hearing

Protection order hearings are what lawyers call “civil” proceedings (that is, not criminal). They are intended to restrict the future behaviour of the respondent, not to punish for what has already been done. Because of this, the standard of proof, which the court will need, is called the civil standard and is based on the “balance of probabilities”. The Magistrate must believe that it is more likely than not that the person is telling the truth.Both parties will be asked to give sworn evidence, as will any person called as a witness. It is helpful for the Woman to have documents for example, doctor’s certificate or photographs, or witnesses to support her case. The proceedings take place in a closed court, so that any evidence that is put forward or any outcomes of the hearing are kept confidential.If the police have made the application for a protection order, the Woman will probably be called to give evidence in court at the hearing.  She will receive a summons to appear in court. In a worst case scenario, if the Woman refuses to attend court after being summonsed, there may be a warrant issued for her to be taken into custody and made to appear in court to give evidence.It is strongly advised that a Woman seek legal advice from a solicitor or the police prosecutor before court so she can prepare her case and they can discuss what will happen in court.Generally an order lasts for two years, although a Magistrate may determine that a protection order continue for a period longer than two years, if there are special reasons.

At the hearing, the court must explain to both the respondent spouse and the aggrieved spouse if they are present in court:

bullet

The purpose, terms and effect of the proposed order including that the order can be enforceable in other states, territories and New Zealand

bullet

That either party may apply for revocation or variation of an order.

The court must also explain to the respondent spouse if they are present in court, the consequences of breaching a domestic violence protection order.

The court may use the services or help from other people to explain the order. This could include a local interpreter or the telephone interpreter service, an Aboriginal or Torres Strait Islander local government, a community justice group or group of elders or a clerk or an employee at the court.

 

Temporary Protection Orders

As there can be periods of 2-4 weeks until both parties are required to go to court for the first mention date, it is important for the Woman to consider whether she will need a temporary protection order. The period from when the respondent is notified until the first court date can place a Woman in a dangerous predicament. If she feels that this is likely to happen she can ask for a temporary order to cover her until she comes back to court. Usually a temporary order will be granted by a Magistrate (particularly if there are serious concerns for her safety) on the same day she lodges the application. It must appear to the Court that the respondent spouse has committed an act of domestic violence for a temporary order to be granted. A temporary order has the same basic conditions as a full order and can include other conditions. The granting of a temporary order at this stage is done without the respondent spouse being at court. This is called ex-parte. The local police will receive a copy of this temporary order and will serve this on the respondent spouse along with a summons to appear in court at the next court date.Police who have attended a domestic violence incident may apply for a temporary protection order for the Woman if they believe it is necessary. An application by the police for a temporary protection order can be made to a Magistrate by telephone, facsimile, radio or other similar facility.

Furthermore where the police have investigated an incident and the respondent spouse is detained at the Watchhouse because of domestic violence, the police must apply for a protection order. The investigating officer must arrange for the respondent spouse to be released on conditions, which address all the issues, including the safety concerns of the aggrieved spouse and whether the respondent should be prohibited from entering any premises. If the police have been involved in this way, the Woman should be informed by the police if there are any orders in place or otherwise be told of the release conditions.

Protection order conditions

When a court makes any domestic violence protection order automatically it says that the respondent must be of good behaviour and not commit domestic violence against you, your children and any other people named on the order.

  1. that the respondent spouse be of good behaviour towards the aggrieved spouse and not commit domestic violence.

  2. That the respondent spouse must be of good behaviour towards any aggrieved relative/s or associate/s and not commit an act of associated domestic violence against the aggrieved relative/s or associate/s.

  3. That the respondent spouse does not possess a weapon for the duration of the order.

  4. That all weapons licences issued in the name of or in relation to the respondent spouse be cancelled.

If the respondent spouse can show that they will lose their job if they lose their firearms licence the condition relating to firearms c. and d. may be changed to allow restricted access to the firearms. However, even in this situation, if the respondent spouse has ever used any weapon against the Woman they will still lose their licence.

The court can make other conditions such as:

No contact either directly or indirectly with the aggrieved spouse and/or associate (unless as specified in a written consent agreement).

  1. Not to stalk aggrieved spouse and/or associates.

  2. Not to come within (a specified distance) of aggrieved spouse and/or associate.

  3. Not to enter within (a specified distance) of aggrieved spouse’s workplace and/or associates’ workplace.

  4. Not to enter within (a specified distance) of aggrieved spouse’s residence.

  5. Not to enter within (a specified distance) of other places frequented by aggrieved spouse for example shopping centres, schools, homes of associates.

  6. Not to commit a specific act of domestic violence.

  7. Not to contact or ask someone else (for example, a friend or private investigator) to contact an aggrieved spouse or any aggrieved person.

  8. Not to locate or attempt to locate or ask someone else to locate the aggrieved spouse or any aggrieved person.

  9. To vacate residential premises formerly shard with aggrieved spouse. The respondent spouse must be given a period of time in which to collect specific property from the premises. Consideration should be given to whether a police officer should supervise this.

  10. The respondent spouses allow the aggrieved spouse to collect specific property from a specific address on a specific date.

  11. Other. She may have a special request relating to her circumstances, which the court may accept.

In some cases it is possible for the courts to make an 'ouster' condition. This means that the court can stop the respondent from coming back to where you live, or remove them from where you live, even if you have both lived together. The court may allow the respondent to return to the residence to get their belongings. This can be supervised by the police.

Domestic violence court assistance

Going to court can be a very intimidating experience for a Woman who comes into contact with an angry spouse. At some courts there are domestic violence court assistance workers. These workers may be attached to the local domestic violence service or community centre, or may be volunteers (sometimes survivors of domestic violence themselves) who are responding to the need in their local area. Court assistance workers may assist women with completing protection order application forms, and advise the Woman on the important things to include in her application and how to word it appropriately for the Magistrate. They can provide information and support throughout the court process. A Woman should contact her local Magistrates court to find out if there is a domestic violence court assistance worker at that court to assist her.

The Women's Domestic Violence Court Assistance Service provides free and confidential assistance for all women who attend court for domestic and family violence matters.

Their workers can:

  • help you access the court's safety facilities
  • explain about Protection Orders, their conditions and what to do if an order is breached
  • help to complete an application for Protection Order
  • explain the court process
  • provide you with support and information in court and throughout court process
  • assist you with completing applications for legal aid
  • advocate on your behalf with the police prosecutor, court staff and other.

Legal Aid Queensland
44 Herschel Street
Brisbane Qld 4000

Ph: (07) 3238 3562
Fax: (07) 3238 3927
Email: caw@legalaid.qld.gov.au

  • Brisbane Magistrates Court
    Level 6, 363 George Street
    Brisbane Qld 4000

    Ph: (07) 3247 5437
 

For more information about the Women's Domestic Violence Court Assistance Service

Safety in court

Under the Domestic Violence (Family Protection) Act, a court hearing an application for a protection order is not open to the public. The court may open the proceedings to the public or specified persons in certain circumstances. Generally, the respondent is not allowed to have family or friends present, as they may be used to further intimidate the Woman during the court process. However, under the Act, “an aggrieved spouse is entitled to have a person with them throughout the proceedings to provide support and other assistance”.

There are safety protocols for courts. If a Woman feels that she will be in any danger from her partner while attending court then it is best to talk with the court staff prior to the court date so that arrangements can be made for her safety.

Protection orders and contact orders

 

Where there is a Protection Order in place, or one is needed, difficulties can arise for people who also have residence/contact orders through the family law system. If the Family Court makes a residence/contact order that conflicts with a Protection Order, the residence/contact order takes priority. The Protection Order will still stand, but any part that is inconsistent will be over-ruled by the residence/contact order.  

Under the Family Law Act, all state and territory orders are described as family violence orders. Such orders may forbid one parent from coming within a set distance of another parent or stalking or harassing them.

Sometimes the Family Court or Federal Circuit Court makes an order or an injunction that is inconsistent with the state or territory order (see Sections 68P and 68Q of the Family Law Act). Under the Family Law Act, family violence orders can allow parties to come into contact with each other only for:

  • delivering or collecting a child who is spending time with a parent or other person (as provided by the Family Law Act), or

  • enabling parties to attend family counselling, family dispute resolution, a family consultant meeting or other court events during family law proceedings.

 

If a Woman has a Family Court contact order or has an application currently before the Family Court, she should tell the magistrate at a hearing for a domestic violence protection order about this for the following reasons: 

  1. A domestic violence order must be consistent with a Family Court contact order. If it is not then the Family Court order will be the dominant order and must be abided by.

  2. A magistrate cannot usually make orders about children in relation to residence, contact and specific issues if there is any dispute between the parents. However, if a Woman applies for a protection order or a variation of her protection order, then the magistrate may at the same time make or vary the terms of her existing Family Court contact order to make it safer for her and the children when contact takes place. The magistrate can also discharge or suspend an existing Family Court order, if among other things, the magistrate is satisfied it would be too unsafe for the Woman or her children if contact continued.

If you have Family Court contact orders in place before you have a domestic violence protection order, try to seek legal advice about whether these laws apply to you before you apply for your protection order. QldWLS

Varying or revoking an order

Applications to change, cancel or extend an order can be made to the Magistrates Court by the aggrieved spouse, a person authorised by the aggrieved spouse, the respondent or the police.

A Woman may need to change her order and/or add or remove conditions if her circumstances change. For example the respondent may start telephoning her at work and the protection order may not address this problem.

If the order is due to expire and the Woman feels that there is still a likelihood of violence, she can apply to have the order extended beyond the normal two year time period.

A Woman can apply to vary the order at anytime during the life of the order. However, if the order was a police application it is best for the Woman to approach them directly to discuss her concerns.

If a Woman finds that the order is no longer of use because hey have reconciled, then she could apply to revoke the order. However, it is not uncommon for the violence to reappear. Instead of revocation, protection can still be retained by varying the order. For example, by removing the condition, which prohibits attendance at her home but keeping the other conditions. Again, if the police have sought the protection order for the Woman then it is up to them to revoke it, and often they will be unwilling to do this if they believe the Woman may be in danger.

When hearing an application to revoke a domestic violence order the court must consider:

bullet

The wishes of the aggrieved spouse

bullet

The current relationship between the aggrieved spouse and the respondent spouse, if any, and

bullet

Whether the aggrieved spouse has been pressured or threatened in relation to making the application for revocation.

If the court considers that revoking the order would compromise that safety of the Woman or any other aggrieved person, the court may not revoke the order. However, the court can consider varying the order so that the safety of the Woman is not compromised.

Cross applications

Cross applications are where both parties make applications for orders against each other. These can be quite destructive as there is usually only one party who is living in fear of the other, and with two orders the police find it very difficult to take appropriate action. Women often find that in response to their applications, respondent spouses will make their own application for a protection order, and in this way use the law to retain their power over them. Magistrates may throw out these applications where they are seen to be vexatious.

It is important for women to get legal advice when they are faced with a cross application. Police prosecutors will usually represent the person who made the initial application for a protection order.

Registering an interstate order

A protection order made in one state can be registered in any state or territory, if a Woman is moving interstate or visiting for a long time. The respondent spouse does not have to be notified of registration of an interstate order unless the aggrieved spouse has agreed to this in writing. This is beneficial for women who have moved from interstate and are in hiding because of the domestic violence.

Breach of a protection order

If the conditions of a protection order are broken (breached) by a respondent spouse, a criminal offence has been committed, and can be dealt with by the police.

Women should report the breach to the police immediately so that they can take action. If the breach is not reported, the perpetrator of the abuse may consider the protection order to be useless and continue to abuse her. This is a crucial step that women can take to enforce their orders – the next step relies on the police response.

Women report a varied police response from being very helpful to being of no help at all. It can therefore be important that she has someone with her for support if possible when she reports a breach. If women find that they do not get a good response from the first officer they speak to, they should ask to speak to the officer in charge or to the local domestic violence liaison officer.

Community services such domestic violence services and community legal centres may also advocate on behalf. Supporting evidence such as doctor’s reports, photographs, letters, taped messages on answering machines or information from witnesses may be crucial.

A breach can be punished by doing a community service; be put on a good behaviour bond; pay a fine or imprisonment; . However the punishment is decided by a Court and it may not impose these sorts of penalties if it does not think the breach was a serious offence in itself.

Tenancy

If a Woman is living in a rental property with her partner and an act of domestic violence has been committed, it is possible for her to apply for an order to:

bullet

Remove the respondent spouse from the lease

bullet

Have her name inserted on the lease

bullet

Release her from her obligations under the lease.

 

(Some of the information for this section has kindly been provided by Brisbane Women’s Legal Service Fact Sheet - How to apply for a domestic violence order

Other information is available at Legal Aid Qld

and Womens Legal Services Qld

and a list of support services can be found at: Court support and legal service

 : Home :

 Found a broken link or outdated information?  please email the webmistress