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:
Under the Domestic Violence (Family 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 (Family Protection) Act defines domestic violence in the following way:
The police can take action to protect a Woman experiencing domestic violence and to prevent further violence under the Domestic Violence (Family 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:
Under the Police Powers and Responsibilities Act, 2000, police have the following powers:
In addition to these powers, according to the Police Domestic Violence Policy Manual (1998), the police should as part of any investigation:
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.
Women often find that police are generally unwilling to take the step of pressing criminal charges, for a complexity of reasons. For example, there may not be enough evidence – if a Woman is terrorised by fear she may be unable to make a complete statement to the police. Another reason may be that some police still treat assault by a family member differently to the way they would treat a public assault. If a Woman wishes to have the perpetrator charged, and the police are not pursuing this, she has the right, amongst other things, to contact police in higher authority. Support workers can assist by advocating to the police and others about this also.
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).
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.
She will need to make the court aware of:
Domestic violence court assistance workers or workers from refuges or domestic violence services may be able to assist the Woman with her application.
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.
Protection order conditions
When a court makes any domestic violence protection order there are some mandatory conditions it must include. These are:
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).
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.
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.
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.
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:
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:
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.
Protection orders and contact orders
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:
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:
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 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. For a breach to have been committed, the respondent spouse must also have been:
It is not a defence for a person to say that they did not know that an interstate order could be or was registered in the state.
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 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.
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:
(Some of the information for this section has kindly been provided by Brisbane Women’s Legal Service “Queensland Women and Family Law”)
You May also want to check The Australian government attorney general's department website http://www.familylaw.gov.au/accesspoint/ (search 'protection orders') As some States are currently reviewing protection orders. (Specifically WA and Tas as of June 2004).