He doesn’t hit me. Is it really domestic and family violence?

Domestic and family violence comes in many forms and is not limited to physical violence. It can occur in many different types of settings and can be experienced directly or indirectly. In Queensland, the Domestic and Family Violence Protection Act 2012 contains a broad definition of Domestic Violence. It includes behaviour that:

• physically or sexually abusive; or
• emotionally or psychologically abusive; or
• economically abusive; or
• threatening; or
• coercive, which means they compel or force the other person to do, or not do, something; or
• in any other way controls or dominates the other person, causing them to fear for their own safety or wellbeing, or the safety and wellbeing of someone else.

For example, the following behaviours are examples of domestic violence:

• damaging the other person’s property or threatening to do so;
• depriving the other person of their liberty or threatening to do so;
• threatening the other person with death/injury, or death/injury of their child or someone else;
• threatening to commit suicide or self-harm so as to torment, intimidate or frighten the other person;
• threatening to or actually causing the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;
• unauthorised surveillance of the other person, which means the unreasonable monitoring or tracking of their movements, activities or interpersonal associations without their consent, including, for example, by using technology. Example:
• reading a person’s SMS messages
• monitoring a person’s email account or internet browser history
• monitoring a person’s account with a social networking internet site
• using a GPS device to track a person’s movements
• checking the recorded history in a person’s GPS device
• unlawfully stalking the other person.
• causing personal injury to the other person or threatening to do so;
• coercing the other person to engage in sexual activity or attempting to do so;
• getting another person (outside of the relationship) to engage in any of the above behaviour.

For more examples about what constitutes domestic violence, have a look at the following links:

• Signs of an abusive relationship
• What is domestic violence?
• What is domestic & family violence?

Are DVO’s just for people who are married, or in a de facto relationship?

No. There just needs to be a “relevant relationship” – the person suffering the violence has to be in a “relevant relationship” with the person perpetrating the violence. The relevant relationships are:

1. 1. A family relationship. For example, brother and sister, son and father-in-law, child and parent, aunt and nephew, step-parent and step-child, etc.
   2. An informal care relationship. For example, paid or volunteer carers who come into the home to provide care services.
   3. A spousal relationship including de facto relationships.
   4. An engagement relationship. For example, a couple who is engaged to be married but not living together.
   5. A couple relationship. For example, a couple who is dating, but do not live together and are not married.
   6. A former spouse or former de facto partner

How can I stop the violence?

If you are a person in a relevant relationship like one named above and you have or are at risk of suffering domestic violence or your children have, or are at risk of suffering, have been exposed to or at risk of being exposed to domestic violence, you may be able to make an application for a Domestic Violence Protection Order. The Court may make Temporary Orders or Final longer-term Orders.

Domestic Violence Protection Orders are issued by the Magistrates Court. There are a few ways that you may seek an order. You may make the application yourself, you may contact the police and they may make the application for you or you may have your lawyer make the application on your behalf. If the Protection Order is not urgent it is a good idea to seek legal advice before making the application to ensure that you have taken appropriate and necessary steps to protect yourself and your children and to ensure that you are accessing the right process.

The Court may make a Protection Order if:

• a relevant relationshipexists (eg. intimate personal relationship, family relationship or an informal care relationship);
• the Respondent has committed domestic violence against the Aggrieved; and
• the Protection Order is necessary or desirable to protect the Aggrieved from domestic violence.

The third element is not required for a Court to make a Temporary Protection Order because the purpose of a Temporary Protection Order is to protect those in immediate danger until the Court can decide the application for a Protection Order. As such, it has a shorter duration than a Protection Order. The usual duration of a Protection Order is five years. However, the Court can shorten or lengthen this duration if it sees fit.

The general application process for final Orders requires that the respondent be notified of your application before the Order is made and given the opportunity to respond. There will then be a court date that you attend and the Court will decide your application.

What are the conditions of a Protection Order?

Every Protection Order has the standard condition that the Respondent be of good behaviour and not commit domestic violence against the Aggrieved or any other person named in the Order. If a child is named in the Order, the Respondent must be of good behaviour towards the child, not commit domestic violence towards the child, and not expose the child to domestic violence.

Protection Orders can have other conditions , including prohibiting the Respondent from:

• remaining at, entering or attempting to enter or approaching the Aggrieved at home or work;
• contacting the Aggrieved or asking someone else to contact the Aggrieved;
• being present at or in a place associated with a child, including school or day care centre; and
• trying to locate the Aggrieved or asking someone else to locate the Aggrieved.

Once in place, the parties to a proceedings get a copy of any Orders and the Court must ensure that the parties understand the Protection Order.

What happens if a respondent does not comply with a Protection Order?

It is a criminal offence to disobey any of the conditions of a Protection Order. The Aggrieved should be advised to contact the police immediately if the Respondent breaches the DVO. A police officer can charge the Respondent with an offence.

I’ve been named as the Respondent in an Application for a Protection Order. What do I do?

Domestic Violence Applications are treated very seriously by the Courts in Australia. Once an Order is in place (temporary or final), the terms set down in it must be followed. As explained above, the terms of the Order ordinarily places limits on the respondent’s behaviour. If the terms of the Order are not followed, this will result in breach of the Order and the police can charge the respondent with a criminal offence. A criminal offence carries severe penalties, which can include a term of imprisonment. The behaviours set out in the terms of the Order are not ordinarily considered to be criminal behaviour, however, because they are contained within the Order issued by a Court, a breach of those terms may result in criminal sanctions.

There are circumstances where simply agreeing and consenting the Order may be the best approach, even if you disagree with the allegations contained within the Order. This is called “consenting without admission”. Even if you agree with the Order however, it is a good idea to seek legal advice about the terms of the Order. It is important that you are represented and adequately provided the opportunity for input about the terms that are included in the Order.

However, there are also circumstances when you should disagree with the Order being made. You may be pressured to concede, but if you disagree with the Order, you will have to go to the Magistrate Court and contest the Order. The Court will then set down a hearing date (which can sometimes be months later) but you will need time to prepare your case. You can then make important choices about what evidence and documents, such as photographs and doctors’ reports, you are going to put before the Court and who you should subpoena as witnesses (if any) in order to support your story. It may also be necessary to put your side of the story into an affidavit (which is a sworn statement).

Ultimately, the Court will decide on whether or not to make an Order and on what terms once it has heard all the evidence. It is strongly recommended you seek legal advice before opposing an Order.

How does a Protection Order work with a Family Law Order?

Orders about parenting arrangements after separation are made in the Federal Circuit Court or the Family Court of Australia pursuant to the Family Law Act 1975 (Cth) (“FLA”). Protection Orders are made in state-based Magistrates Courts pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) (“DVFPO”).

Both pieces of legislation recognize the interrelationship of parenting issues and Protection Orders, and by law, people must inform a Court if there is an existing or pending Protection Order  involving themselves or their children.

A parenting order that is made under the FLA will override any inconsistent conditions in a Protection Order. This is because federal law overrides state law. The FLA allows state courts to amend, discharge or suspend parenting orders to remove an inconsistency with the proposed DVO. For example, where the parenting order allows contact between the respondent named on the DVO and a child that is restricted under the DVO. The Court however, must be satisfied that it is appropriate to amend, discharge or suspend the parenting order because a person has been, or is likely to be, exposed to domestic violence as a result of the parenting order.

The DFVPA makes it clear that the Court must not diminish the protection given by the Protection Order  to facilitate the parenting order. The purpose of this is to ensure that an Aggrieved and their children are protected from domestic violence.

Am I allowed to talk about the violence I experienced?

Naming people involved in domestic violence has become an increasing trend as social awareness increases around the seriousness of domestic violence and its impact on victims, their families and the wider community.

This trend has been fueled by social media and the speed at which information can be communicated and published to wide cross sections of the community with a click of a button.

However, before you take it upon yourself to hold someone accountable for wrongs you believe have been committed, consider this:

Section 159 makes it a criminal offence to publish;

• Information given in evidence in a proceeding under the Act in a Court; or
• Information that identifies, or is likely to lead to the identification of a person as-

i) A party to a proceeding under the Act; or

ii) Witness in a proceeding under the Act.

This means, despite any feelings you may have to the contrary, you are prohibited by law from sending, communicating, posting or causing material to be sent, communicated or posted to any other person that relates to domestic violence proceedings. This section specifically relates to material that contains evidence used in Court or that identifies any of the parties to the proceedings (including the Respondent).

The following are examples of the types of conduct that are prohibited by the Act. You may not communicate material that is likely to identify a party to the proceedings or that contains evidence used in the proceedings by;

1. 1. Written or electronic mail, notes, correspondence, notices or other written communication;
   2. Visual representations including posters or signage;
   3. Verbally communicate the information to another personally;
   4. Audio/visual recordings or broadcasts, including, but not limited to podcasts, vlogs, radio, youtube, audio message, or television;
   5. Social media message, post, broadcast, update or image.

A Domestic Violence Protection Order is not a criminal conviction against the alleged perpetrator it is a Civil Order. However, Under the Act, the conduct mentioned above is a criminal offence and is punishable by a maximum of 100 penalty units or 2 years imprisonment.

If you or anyone you know is experiencing domestic violence, please contact a support service or make an appointment to see one of our family lawyers.

We bring you the Top 10 Family Law FAQs asked to us by our clients.

1. What is a Divorce?

A Divorce is the legal recognition at the end of your marriage.

You can obtain a Divorce if your marriage has irretrievably broken down and you have been separated for no less than 12 months.

Despite popular belief, you do not have to prove who was “at fault” and you do not have to wait 12 months after you have separated to finalise your property settlement.

2. What is a de facto relationship?

There is no one “legal” definition of a de facto relationship as there are different requirements for different legal purposes.

However, generally-speaking, a de facto relationship is between 2 persons (not legally married) of the same or opposite sex who are not related by family and, having regard to all of the circumstances of the relationship, have a relationship of a couple living together on a genuine domestic basis.

3. What is child support/maintenance?

Immediately upon separation, you are able to lodge an Application with the Department of Human Services (Child Support) to have maintenance/support assessed for your child if you are unable to reach an agreement with the child’s other parent.

4. What is a Parenting Order?

A Parenting Order made by the Court typically deals with the following issues:

1. 1. Allocation of parental responsibility (i.e. all of the duties, powers and responsibilities and authority, which by law, parents have) in relation to the children (whether sole or joint);
   2. Who the children are to live with;
   3. Who the children are to spend time with;
   4. Any other aspect of the care, welfare and development of the children, or any other aspect of parental responsibility for the children.

When a Parenting Order is made, it is a legal requirement that parties follow the Order.

If a parent does not follow a Parenting Order (in the absence of providing a reasonable excuse), it is called “contravening” a Parenting Order.

There are serious ramifications which flow from a contravention of a Parenting Order such that it is possible for the Court to order parents to attend programs, facilitate “make up” time, enter a bond, pay a fine or even 12 months imprisonment.

It is therefore important that you read and understand the terms of a Parenting Order made by a Court.

5. How does a Court determine who the child shall live with/spend time with?

Despite popular belief, there are no “fixed” rules as to who a child shall live (formerly known as “custody”) and who a child shall spend time with (formerly known as “access”).

The Court’s paramount consideration in determining which parent the child shall live with, and how much time the child shall spend with the other parent, is what is in the “best interests of the child.”

The Family Law Act 1975 sets out the factors that are to be taken into account in determining the best interests of the child.

6. How does a Court determine a property settlement?

Contrary to popular belief, the process that the Court uses to determine a family law property settlement, is not a “mathematical” one.

Unlike other countries, there is no starting rebuttable presumption that the parties’ net property pool is divided “50/50.”

Each relationship is unique.

The Court has a wide discretion in making property settlement orders and consequently, outcomes can vary considerably.

In other words, you could potentially get 5 different outcomes before 5 different Judicial Officers on any given day at a Trial and each outcome would be acceptable, provided it falls within a range of possible outcomes.

In practice, the Court generally follows a long-standing process involving a number of steps in determining the entitlement of each party to a relationship.

The Court follows a process involving a number of the following steps:

• • The court must decide if it would be just and equitable to adjust or change the parties current legal ownership of assets
  • To make a list of all of the current assets, liabilities and superannuation of each of the parties and arriving at a net figure, or what becomes known as the “net property pool.”
  • To assess the contributions of each of the parties throughout the relationship, to the net property pool and to the welfare of the family. Each party’s contribution is assessed as a percentage or a range of percentages.
  • To assess current and future circumstances of each party and make adjustments to the percentage arrived at in step 3. The list of factors in section 75(2):
    • The age and state of health of each of the parties
    • The income earning capacity or discrepancy between the parties
    • The length of the relationship and effect on each of the parties earning capacities; and
    • Who will have the primary care of the children into the future.
  • For the Court to “step back” and assess whether the percentage or division achieved by application of the above 4 steps is appropriate or “just and equitable” in the circumstances.

7. What is spousal maintenance?

Spousal maintenance is money paid by one spouse (i.e. the paying spouse) to the other (i.e. the receiving spouse) in circumstances where the receiving spouse is unable to support themselves “adequately,” following separation.

In determining whether or not spousal maintenance is appropriate, the Court will consider the following:

1. Whether the “threshold” is met (i.e. that there is a ‘need’ for one of the parties to be financially supported by the other);
2. The capacity by the other party to support the first party for a period of time; and
3. The matters in Section 75(2) of the Family Law Act 1975; and
4. The extent of support required (what is ‘adequate’ in the circumstances) and the amount of time maintenance is required to be paid for.

What must be remembered, however, is that the Court is not required to ensure that either party has the same standard of living that they had before separation. It only has to be reasonable in all the circumstances.

8. Do I need to formalise my property settlement?

Upon separation, it is crucial to resolve the issue of property settlement and have any agreement formally recorded in a Consent Order (which is filed and approved by the Family Law Courts) or enter into a Binding Financial Agreement pursuant to the Family Law Act 1975 (“a BFA”).

Unless a property settlement is determined by a Court Order or is properly recorded in a Consent Order or a BFA, then the issue of property settlement is always potentially “alive” (subject to time constraints) and either party can commence proceedings in the future to make a claim against the other party.

There may also be costs savings and tax advantages in transferring property and signing documents pursuant to a Consent Order or a BFA. This includes capital gains tax and stamp duty exemptions.

9. Are there any time limits?

You must resolve or commence proceedings for property settlement and/or spousal maintenance within 12 months after you have obtained your Divorce.

Otherwise, you must seek leave of the Court to do so (which is only granted in exceptional circumstances). In our experience, this is a difficult, costly and lengthy process.

A financial claim at the end of a de facto relationship must be filed within 2 years after the date upon which the de facto relationship ended.

You can (and should) commence negotiations or file an Initiating Application for property settlement and/or spousal maintenance immediately upon separation from your spouse as a result of the irretrievable breakdown of your relationship.

10. Do I need to change my Will/Superannuation/Powers of Attorney or Enduring Powers of Attorney upon separation?

Upon separation, it is crucial to examine the terms of your Will (if you have one) or have a new Will prepared to properly reflect your change in circumstances.

It is also important to examine who is the named beneficiary in your Superannuation policy and whether you wish to change the beneficiary (as in many cases, this will be your spouse).

You should also examine any Powers of Attorney and/or Enduring Powers of Attorney you have put in place during your relationship. In most instances, it may be appropriate to revoke those Powers of Attorney immediately after separation.

If you have a question regarding our Family Law FAQs, contact us.