Over the past 5 years state and federal governments, police, courts and society broadly have made a concerted effort to combat the growing problem that is ‘Domestic Violence’.
Domestic Violence is defined in section 8 of the Domestic and Family Violence Protection Act (2012). The definition is quite broad and relates to behaviour that occurs in the context of a relevant “domestic relationship”. This can be either:
- Physically or sexually abusive; or
- Emotionally or psychologically abusive; or
- Economically abusive; or
- Threatening; or
- Coercive; or
- If a person controls or dominates another person in a way that causes that person to fear for themselves or the safety or wellbeing of another.
Examples of domestic violence extend well beyond physical violence. Monitoring someone’s whereabouts using technology or accessing their private email or social media accounts without permission can amount to Domestic Violence. Cutting off access to a bank account can be abusive. Using threatening and derogatory language can also be abusive.
Domestic Violence Protection Orders
A Domestic Violence Protection Order application is a civil application brought by a person, referred to as the applicant or the aggrieved, asking the court to make an order requiring another person, referred to as the respondent, to do, or refrain from doing, certain acts towards the aggrieved. The types of orders that are regularly made within applications include orders forbidding someone from contacting the applicant, or from approaching them, or from telephoning them or sending them text messages, and that sort of thing.
If you’ve been the victim of domestic violence, there are two different ways in which you can apply to the court for an order. You can either make the application yourself by filling out the relevant form, which is available at any police station or courthouse, and filing that form with the court, or alternatively, you can make a complaint about the domestic violence to the police, and from there the police usually, and most often will, file and prosecute the domestic violence application on your behalf. You don’t have to pay anything for that, and you don’t have to retain lawyers. But you should keep in mind that if the police bring the application on your behalf, it will be their decision as to how the application is run and therefore, whilst you will undoubtedly be consulted and perhaps required to give evidence, your influence on the actual conduct of the proceedings is somewhat limited.
If a domestic violence application is brought against you, and the court ultimately makes an order against you, you could be bound by that order for up to 5 years.
It is important to understand that, while many applications involve allegations of criminal behaviour such as assaults or threats, these domestic violence applications are in a civil jurisdiction, meaning that the court needs only to be convinced the allegations are true on the balance of probabilities, not beyond reasonable doubt, so there’s a lower standard of proof in domestic violence proceedings than there is in criminal matters. That of course benefits the person asking the court to make an order, and puts a greater onus on the person accused of domestic violence to refute any allegations being made, regardless of their merit.
Under the legislation a court should never make a domestic violence order unless it is satisfied of each of three essential elements –
- that a relevant relationship exists between the aggrieved and the respondent. The concept of a relevant relationship is a very broad one, but typically it includes any person with whom you are or have been married to, or in a relationship with, or lived with, or who is a member of your family.
- that the respondent committed domestic violence against the aggrieved. Again, the concept of domestic violence is very broadly defined. It includes things such as physical assaults, but it also includes things such as damaging property, psychological abuse, economic abuse – such as taking or disposing of someone’s property, or taking control of their finances or stopping them from getting a job.
- that a protection order is necessary or desirable to protect the aggrieved from domestic violence in the future. This is an important and interesting element in the equation because, even if the court is satisfied that a relevant relationship existed between the parties, and one of them was guilty of domestic violence towards the other, the court still can’t make a domestic violence order unless it is satisfied that there is an ongoing need or desirability for an order to be made. So if, for example, following the incident or incidents alleged, a lot of time has passed and there’s been no misbehaviour, and perhaps no contact between the parties, for some considerable time, perhaps the offending party has moved away or otherwise exhibited an intention not to have any contact or cause any trouble, the court may not be satisfied that it is necessary or desirable to make an order going forward. In that case, no order should be made.
It is important to understand however, that the domestic violence courts are not bound by the rules of evidence, and they can inform themselves as they see fit. The court can act even on opinion and hearsay evidence. That can make things a little unpredictable, so if you are going to court for a domestic violence hearing, it is critical that you are well-prepared.