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Domestic violence orders

Assessment criteria

For legal aid to be granted to apply, vary or respond to an application for a protection order in the magistrates court the following tests must be satisfied:

Documentary requirements

Application received from client

Applicants seeking a grant of legal assistance should forward all of the following documents for assessment:

  • a completed and signed Legal Aid Queensland application form
  • proof of income and assets (refer to the means test)
  • details of the alleged incidents of domestic violence that has occurred
  • if a police protection notice issued, a copy of the notice
  • any police statements related to a criminal offence
  • if a temporary protection order has been made, a copy of the application for a protection order and a copy of the temporary protection order
  • for respondents, details of evidence which demonstrates that the application sought by the aggrieved is unlikely to be successful
  • application by the other party.

Application received from preferred supplier or in-house practitioner

Practitioners seeking a grant of legal assistance should electronically submit an application for aid via the Grants Online system attaching:

  • a domestic violence information request
  • proof of income and assets (refer to the means test)
  • details of the instructions from the client with details of the alleged domestic violence that has occurred
  • if a police protection notice issued, a copy of the notice
  • any police statements related to a criminal offence
  • if a temporary protection order has been made, a copy of the application for a protection order and a copy of the temporary protection order
  • for respondents, details of evidence which demonstrates that the application sought by the aggrieved is unlikely to be successful and a copy of the application of the other party.

The following documents are retained on file but may be requested by Legal Aid Queensland:

Interpretation

Statement of intent

  • A significant proportion of Australian women have experienced physical or sexual violence from their previous or current partners1, over a third of women (36%) who had experienced violence reported that their children had witnessed the violence.Women also made up the majority of victims of intimate partner homicides.2
  • This is a sombre picture for those working with people affected by domestic and family violence. Legal Aid Queensland plays an important role in this landscape – by funding both in-house and private solicitors to represent people in domestic violence and family law matters and by providing court assistance services in Brisbane.
  • Given this role, Legal Aid Queensland acknowledges and supports the object of Queensland’s new laws on domestic violence – that is to maximise or augment the safety, protection and wellbeing of people who fear or experience domestic violence, including their children. Legal Aid Queensland also acknowledges and supports the principles of the legislation that –
    • people who fear or experience domestic violence, including children, should be treated with respect and the disruption to their lives minimised,
    • vulnerable people have characteristics that may make them particularly vulnerable to domestic violence and that any response to the domestic violence should take account of those characteristics, and
    • where there are conflicting allegations of domestic violence , the person who is most in need of protection should be identified.
  • Legal Aid Queensland believes that these aspects of the legislation needs to be reflected in its daily activities - in the way that our officers assess grants of legal aid, in the way our client service officers deal with clients, in the way our lawyers represent people.
  • Giving effect to this object and principles will also give effect to the intention of our funders. Both the Queensland and Australian government(s) fund Legal Aid Queensland to provide legal assistance for a range of legal problems. Both prioritise people and/or children experiencing or at risk of experiencing domestic and family violence.3

1 General Intimate Partner Violence Statistics, Australian Domestic and Family Violence Clearinghouse (February 2011).

2 Ibid; page 2

3 Schedule A of the National Partnership Agreement on Legal Assistance Services states - the priorities for family law matters relate to complex issues and fundamental matters necessary for the wellbeing of children and/or people who have experienced, are experiencing or are at risk of experiencing, family violence AND the Agreement between The State of Queensland and Legal Aid Queensland which prioritises domestic violence in civil law matters.

The applicant demonstrates in their application that an act of domestic violence has occurred

Domestic violence is defined as any of the following behaviours that a person commits against another person if a relevant relationship exists between the two persons. Behaviour that:

  • is physically or sexually abusive, or
  • is emotionally or psychologically abusive, or
  • is economically abusive, or
  • is threatening, or
  • is coercive, or
  • in any other way controls or dominates the second person to fear for their safety or wellbeing or that of someone else.

Relevant relationship includes:

  • spousal relationship (married, de facto, registered relationships)
  • intimate personal relationship (couple or dating/engagement relationships)
  • family relationships
  • informal care relationships

A domestic violence order is necessary or desirable to protect the applicant and/or their children from domestic violence

Examples of where a domestic violence order is necessary or desirable includes:

  • The aggrieved, children in the household of the aggrieved, other children, relatives or associates of the aggrieved have experienced actual or threatened domestic violence.
  • Children of the aggrieved and/or other children have been exposed to actual or threatened domestic violence.
  • It is likely that they will be exposed to further actual or threatened violence.
  • There is a need to protect the safety or wellbeing of the aggrieved and/or their children.

The Queensland Police Service has commenced acting in an application on behalf of the aggrieved but are no longer able to act

The Queensland Police Service (QPS) is a principal provider of representation for domestic violence proceedings.

  • Division 2 of the Act deals with the power of the QPS to issue a police protection notice. This allows police to issue “on the spot” notices which are taken to be an application for a protection order made by a police officer. For the notice to issue the respondent must be present when the police attend.
  • In other instances the QPS may, following investigation, initiate an application for domestic violence.

In both of these cases the QPS is the applicant and aid is not available as the applicant does not require legal assistance funding from Legal Aid Queensland.

There are some cases where the aggrieved has made an application for a domestic violence order and the QPS have been assisting the applicant at the court.

  • If a respondent cross applies for an order the QPS will no longer act for the applicant.
  • There may be other reasons the QPS are no longer able to continue acting for an applicant for a domestic violence order.

If this is the case a grant of legal aid may be available subject to the means test, guidelines 3 – domestic violence and the merits test.

Vary a domestic violence order

Aid may be granted to vary a domestic violence order provided the applicant meets the merits test with regards to the reasonable prospects of success test and the appropriateness of spending limited public funds test. Examples where an order may need to be varied include:

  • to give operation to family court orders
  • to extend an order where continuing protection is required
  • to increase conditions to protect the aggrieved and/or their children where there has been evidence of prior breaches of orders during the operational period
  • there has been a significant change in circumstances.

The respondent provides evidence which demonstrates the application by the aggrieved is unlikely to be successful

Aid will be granted to respondents to domestic violence applications where evidence is provided which demonstrates the application by the aggrieved is unlikely to be successful and the respondent meets the means test and merits test.

Evidence should indicate that:

  • The respondent is not the main perpetrator of the domestic violence and is actually the person who is most in need of protection.
  • The respondent has factual information which means there are reasonable prospects of success in opposing the making of the order.
  • The respondent has a real likelihood of successfully challenging the conditions of the domestic violence order sought by the aggrieved.
  • The respondent has a defence to the application – for example the parties are not in a relevant relationship, the respondent has an alibi or a basic defence at law.

Grant(s) of aid

The grant of aid to apply, respond or vary a protection order in the magistrates court under the Domestic and Family Violence Protection Act 2012 is G7.

Extension(s) of aid

If the contested hearing in the magistrates court exceeds one day, an extension of aid is available under the G7B grant of aid.

Review of decisions

A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decisions).

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