WHAT IS DOMESTIC VIOLENCE?
In some instances, people are unaware that they are perpetrating or subject to domestic violence. Because of the recent uprise in domestic violence fatalities, the interpretation of what domestic violence means is quite broad.
Below is a list to assist you in recognising instances of domestic violence:
(a) Psychological Abuse, for example:
- Behaving and/or commenting to undermine your sense of self;
- Name-calling or putdowns;
- Threatening to withhold money;
- Disconnecting the telephone;
- Taking the car away;
- Lying to your friends and family about you;
- Telling you that you have no choice in any decisions;
- Attempting to or threatening to commit suicide;
- Taking the children away;
- Threatening to report you to welfare agencies unless you comply with demands regarding bringing up the children;
(b) Verbal Abuse, for example:
- Constant put-downs;
- Name calling;
- Making harassing or threatening phone calls;
- Saying things to scare you (e.g. something “bad” would happen; threatened to commit suicide);
- Using the children to threaten you (e.g. told you that you would lose custody; said would leave town with the children);
(c) Physical Abuse, for example:
- Actual or threatened physical harm (e.g. injured you by causing bruises, cuts, broken bones, slapping, punching, pushing, choking);
- Being threatened or injured with objects/weapons;
- Destroying or damaging property;
- Making threats to hurt you and/or your children;
- Denial of sleep, warmth or nutrition;
- Denial of needed medical care;
- Driving recklessly while you and/or your children were in the car;
(d) Social Abuse, for example:
- Controlling where you go, who you see, what you wear;
- Keeping you from contacting family or friends;
- Preventing someone from leaving the house;
- Preventing someone from going to a place of worship or praying;
- Making all the ‘big’ decisions;
- Checking up on you excessively (e.g. listening to your phone calls, checking the mileage on the car, calling you repeatedly at work);
- Refusing to do housework or child care;
- Making you feel guilty about going to work or socialising;
- Controlling your use of mobiles, phones and internet and use of the family car;
- Constantly checking up on your whereabouts;
(e) Sexual Abuse, for example:
- Forcing you to participate in unwanted sexual contact/activity (note that forceful sex is a criminal offence, even if you are married);
- Pressuring you to have sex when you didn’t want to (will not take no for an answer);
- Forcing you to have sex or to do sexual acts you do not want or like,
- Raping you;
- Humiliating you through unwanted sexual contact/activity;
(f) Reproductive control which relates uniquely to women’s ability to control their own reproductive health, and includes, for example:
- Controlling the use or non-use of contraception/contraception method;
- Forcing you to make decisions around pregnancy and/or termination;
- Having little say in the number and timing of the children being born to the relationship;
(g) Financial Abuse, for example:
- Taking control of your financial affairs when you don’t want them to;
- Preventing you from having access to money;
- Denying access to bank accounts;
- Forcing the surrender of bankcards and credit cards to gain control of your income;
- Preventing you from seeking or maintaining employment;
- Making you ask for money for basic items such as food, petrol and clothing, and forcing you to provide receipts to account for your spending;
- Refusing to provide enough money to meet basic living expenses;
(h) Property Damage, for example:
- Kicking a hole in the wall;
- Scratching your car;
- Taking away or breaking things that are important to you;
- Abusing a family pet;
STALKING, BEING BEHAVIOUR
(i) Stalking, being behaviour intended to harass, intimidate and torment another person, for example:
- Repeated phone calls;
- Sending letters, faxes or e-mails, using social media (such as signing into your Facebook or twitter accounts);
- Loitering near your residence or place of work;
- Spying on or openly watching you;
- Following you;
- Harming pets;
- Repeatedly organising unwanted home deliveries;
- Repeatedly sending flowers or chocolates;
- Damaging property;
- Moving belongings around;
- Changing details on personal identification;
(j) Technological abuse, for example:
- Using technology to directly or indirectly monitor and stalk you;
- Posting personal information on websites;
- Tracking devises being installed in cars and mobile phones (e.g. GPS, spyware, listening devises, hidden camera, and keystroke-logging hardware).
If you believe that you or anyone you know is subject to any of the above examples of domestic violence, please contact our Gold Coast Family Law department for a free initial consultation to discuss your options moving forward.
Please also see Resources.
APPLYING FOR A DOMESTIC VIOLENCE ORDER
It is imperative that if you or your children are at risk of physical harm you call the Police immediately on 000.
If you do not know if you are subject to domestic violence or not, please see what is domestic violence.
APPLYING FOR A DOMESTIC VIOLENCE ORDER
You can make a private application for a domestic violence order (‘DVO’) by filling out an application for a protection order and filing the form at the Domestic Violence Registry (located at the Magistrates Court in Southport).
You can also request that a police officer make an application on your behalf. Usually this will occur where a police officer attends an incident of domestic violence.
TYPES OF DOMESTIC VIOLENCE ORDER
There are two types of DVO:
(a) A temporary protection order, which will be put in place immediately from the date of an application until the Magistrate has time to hear the matter (and decide whether a protection order is necessary).
(b) A protection order, which is an order made by a Magistrates Court to protect a person who is found to be subjected to domestic violence. A protection order usually lasts 5 years.
CONDITIONS IMPOSED ON THE RESPONDENT
Once made, a DVO will have ‘conditions’ imposed upon the respondent. The standard conditions are that the respondent be of good behaviour and not commit an act of domestic violence against the aggrieved or any other named person. Other conditions can be implemented:
(i) Cool-down condition (for a period of time) or no-contact provision, which prevents the respondent from doing the following:
- Entering or going within 100 metres of their home or work;
- Following the aggrieved or named person;
- Approaching the aggrieved or named person within 100 metres (it is recommended that the parties vacate the area if they become aware that the other is there);
- Contacting or attempting to contact the aggrieved or named person;
- Using the internet or any social networking site to communicate with the aggrieved or named person’s (including publishing pictures or making comments concerning the aggrieved or named person);
- Calling or texting, or attempting to contact the aggrieved or named person in any way; and
- Locating, attempting to locate, or asking someone else to locate the aggrieved or named person’s.
CONDITIONS IMPOSED ON THE RESPONDENT
(ii) Ouster order:
In some circumstances, the Magistrate can include a condition of the domestic violence order that the Respondent not be allowed to return to where you live, or that they be removed from where you live, even if that is their usual residence.
An ouster condition will also include a return condition that allows the Respondent to attend at the residence to collect their belongings. This is usually in the company of a police officer.
(iii) Intervention order:
Requiring that the Respondent attend upon an intervention program. This can only be done if the Respondent is in court and agrees to comply.
If you believe that you are the victim of domestic or family violence, we encourage you to contact our Gold Coast Family Law department to set up a free initial consultation with one of our Family Lawyers. We can provide you with confidential advice and a safety strategy so that you can move forward.
DEFENDING A DOMESTIC VIOLENCE APPLICATION
If the Aggrieved has filed a domestic violence application (‘DVO’), naming you as the Respondent, you will be served with the relevant documentation by a police officer.
CONSEQUENCES OF BEING NAMED A RESPONDENT
Importantly, being named as a Respondent to a DVO does not mean you have a criminal record.
You are only at risk of having an incident cited on your criminal record if you breach the conditions of a DVO.
You have the opportunity to defend the DVO.
YOUR OPTIONS MOVING FORWARD
You will be given a court date which you will have to attend. Prior to or at the court date, you can:
(i) Admit the allegations and consent to an order;
(ii) Consent to an order being made but not admitting the allegations (usually for 5 years). This is called “consenting without admission” and means that you do not admit to any of the allegations made within the application, but confirms that you are happy to abide by the conditions imposed by the order;
(iii) Request that the proceedings be adjourned to a later date so that you can get legal advice (in which time the aggrieved is usually issued a temporary protection order);
(iv) File a cross-application;
(v) Oppose the orders being made, the matter will then be set down for a final hearing so that the magistrate can decide the matter – you will then get an opportunity to explain why you oppose the orders (usually this will be done by way of a sworn affidavits and witness testimony);
(vi) Provided you are not in breach of a temporary protection order, negotiate with the aggrieved to have the application be withdrawn and replaced with an undertaking (i.e. that you undertake to be of good behaviour and not commit an act of domestic violence); or
(vii) Do nothing.
Defending an application for a DVO can have serious implications. Before making a decision about what option you will take, you should seek legal advice.
For further information and to discuss your options, please contact our Family Law department to set up a free initial consultation with one of our Family Lawyers.
It is imperative that, if a temporary protection order is made, that you abide by the conditions imposed.
If you are found to be in contravention of any of the conditions, you will have committed a criminal offence. You then expose yourself to the possibility of being penalised with a fine and/or possible imprisonment. The maximum penalties change from time to time. For further information regarding the maximum fine and prison sentence, please contact our office. Any breach of the temporary protection order, no matter how insignificant, is taken seriously by the courts when considering an appropriate penalty.
To be clear, you should have no contact whatsoever with the other party. In the event that the other party contacts you, you should terminate the contact immediately. If you require any further legal advice, please contact our Gold Coast Family Law department and we will arrange for a free initial consultation with one of our Family Lawyers.
DOMESTIC VIOLENCE ORDERS AND FAMILY LAW ORDERS
Before making or varying a domestic violence order (‘DVO’), the magistrate must consider any family law orders and family law proceedings.
If you have family law orders (particularly parenting orders) or there are family law proceedings (particularly parenting proceedings), you should bring these to the attention of the magistrate at the earliest opportunity.
DOMESTIC VIOLENCE ORDERS AND FAMILY LAW ORDERS
If you have parenting orders that allow contact between the respondent and a child, that contact may be restricted by a proposed DVO. In those instances, parenting orders may be revived, varied, discharged or suspended for a period of time.
The court must give you an opportunity to present evidence and prepare and make submissions before making such an order unless the court is making a temporary protection order. In those instances, the court has the power to suspend parenting orders for 21 days.
The safety of the children and the parties involved will be the paramount consideration.
If you have parenting orders in place and are seeking to make an application for a protection order, or you are defending an application for a protection order, please contact our Gold Coast Family Law department and arrange for a free initial consultation with one of our Family Lawyers.