What are my legal rights?
Everyone has the right to live without fear of violence or abuse. The Domestic and Family Violence Protection Act 2012 was created to give people legal protection from violent relationships. If you are experiencing violence in a relationship you can:
- apply for a domestic violence order to help stop the violence
- apply for an urgent temporary protection order
- ask the police to press charges against the person being violent.
What can I do if there is family and domestic violence?
You can contact specialist family and domestic violence services to help you work out a plan to leave the relationship safely. You can call DV Connect on 1800 811 811, 24 hours a day, seven days a week. Legal Aid Queensland, a family relationship centre or the Family Relationship Advice Line can refer you to other specialist family violence services in your area.
If there is family violence or you have been threatened, you may get help from the police. If you are at immediate risk of harm, ring the police straight away.
If you can, take important documents and items for you and your children if they are leaving with you. See Separation for a list of items you may need. Do not put yourself in danger by arguing over belongings if you are leaving a relationship.
No one has the right to hurt or threaten another person. These laws protect everyone who lives in Australia. If you are on a visa and there is family violence, get legal help immediately. In Brisbane, you can contact the Refugee and Immigration Legal Service.
Who can apply for a protection order?
You can apply for a domestic violence order if you are experiencing violence in a relationship. Relationships covered by the law include:
- an intimate personal relationship (married, de facto, registered relationship, engaged, couple)
- a family relationship (a parent, or former parent, of a child, or your relatives)
- an informal care relationship (where one person is dependent on the other person for help in an activity of daily living like dressing and cooking for them).
What is domestic and family violence?
Domestic violence behaviour includes when another person you are in a relationship with:
- is physically or sexually abusive to you, or
- is emotionally or psychologically abusive to you, or
- is economically abusive to you, or
- is threatening, or
- is coercive, or
- in any other way controls or dominates you and causes you to fear for your safety or wellbeing or that of someone else.
Examples of this type of behaviour include:
- injuring you or threatening to injure you - punching, strangling you, grabbing your throat, pushing, slapping, pulling your hair or twisting your arms
- repeatedly calling, SMS texting, or emailing you or contacting you on your social networking site without your consent
- damaging (or threatening to damage) your property eg punching holes in the walls or breaking plates
- stalking or following you or remaining outside your house or place of work
- monitoring you (unauthorised surveillance) including reading your text messages, your email account, your internet browser history, your social networking site
- putting you down or make racial taunts
- holding you against your will
- forcing you to engage in sexual activities without your consent
- getting someone else to injure, intimidate, harass or threaten you, or damage your property
- threatening to commit suicide or self-harm to scare you
- threatening you with the death or harm of another person
- threatening to withdraw their care of you if you don’t do something
- coercing you to give them your social security payments
- forcing you to sign a power of attorney to them against your will so that they manage your finances
- threatening to disclose your sexual orientation to your friends or family without your consent
- preventing you from making or keeping connections with your family, friends or culture, including cultural or spiritual ceremonies or practices.
What about children?
Children can also be included on a domestic violence order to protect them from violence. This can include your children, or children who usually live with you (this means a child who spends time at your home on a regular or on-going basis). This could include step-children or other children who spend time at your house on weekends or school holidays. It can also include an unborn child (the order would have a condition that takes effect when the child is born).
Children can be included on a domestic violence order if the court thinks it is necessary or desirable to protect the child from domestic violence. The law says a child has been exposed to domestic violence if they hear or see or “otherwise experience” domestic violence. This could include:
- helping a family member who has been hurt as a result of domestic violence, or
- seeing damaged property in the home.
If the court is aware that you have children living with you or regularly visiting your home, then it must consider including those children on the domestic violence order.
What can a domestic violence order do?
A domestic violence order puts limits on the behaviour of the person who is being violent (the respondent). They must be well behaved towards the aggrieved and anyone else named in the order. Once an order has been made, it is illegal for the respondent to breach the order and they can’t own a weapon or have a weapons licence.
How do I apply?
You can apply for a domestic violence order at a magistrates court or get a police officer, lawyer or someone you trust to apply for you. You should get legal advice before applying for a domestic violence order.
What happens when I apply?
For urgent applications
If you believe your safety is at risk, and the normal application process won’t protect you quickly enough, you can make an application for an urgent temporary protection order. You’ll go to court soon after you apply and it will be done before the respondent is told about your application. You will be given another date when you and the respondent will have to go to court to tell the magistrate about your situation. If you have a lawyer, they may be able to go to this court hearing for you.
For non-urgent applications
After you’ve submitted your application, you will be given a date to go to court. The date and a copy of your application will be given to the respondent. The respondent can choose to agree to a domestic violence order being made, oppose your application or ask for another court date to give them time to get legal advice. If they disagree, another court date will be made for a hearing.
How can the police help?
If the police suspect domestic violence has been committed they must investigate your complaint. If after they’ve investigated they reasonably believe that domestic violence has been committed they can:
- Charge the respondent with a criminal offence
- Issue a police protection notice - This is issued on the spot and protects you immediately from further acts of domestic violence. It has the same effect as a court order until the matter is heard in court.
- Apply to a court for a domestic violence order on your behalf
- Apply to a court to vary an existing domestic violence order
- Take the respondent into custody
- Apply directly to a magistrate for an urgent temporary order.
What if the order is broken?
You should call the police immediately if the respondent breaks the conditions of the domestic violence order. The police will investigate and if it can be proved the order was broken, the respondent will be charged with breaching the domestic violence order, which is a criminal offence. They could also be charged with other criminal offences depending on the circumstances. It will help the police if you have proof the order was broken, like recordings of abusive telephone messages, diary entries you made about the violence and the names of family, friends and neighbours who witnessed the behaviour.
Can I change the order?
You can apply to vary the order if you are the aggrieved, the respondent or a person named in the order, but if the police have taken out the order, they can oppose this.
If you are the aggrieved or the respondent, you can apply to vary the conditions of the order, the persons named in the order or the duration of the order. For example, you may apply to change some or all of the conditions of the order or you may apply to vary the length of the order to end it sooner or make it longer.
Persons who are named in the order (eg friends or family of the aggrieved) can only apply to change the parts of the order that relate to them.
When deciding whether to vary an order, the court must consider the wishes of the aggrieved and any person named on the order, whether they may have been pressured, and whether their safety, protection or wellbeing may be affected by changing the order. The court will only vary the order if it is satisfied that the aggrieved and any person named on the order would not be adversely affected by the change.
If you want to change the terms or conditions of the order, you must fill out a DV 4 Application to vary a domestic violence order form.
Remember: If you and the respondent decide to live together again, you should get legal advice about having the domestic violence order changed. The respondent may be breaching the order just by being near you. You can have a domestic violence order and still live with the respondent.
What if a domestic violence protection order or police protection notice has been taken out against me?
- Do not break the order or the notice, even if you do not agree with it. Read it carefully. For example, you may be able to stay in the home, but ordered to stop harassing, hurting or threatening the other person.
- You must go to court — an order can be made even if you do not go.
- Get legal help. The conditions of an order or notice are serious and breaching a domestic violence order (including any temporary orders which may be made) is a criminal offence. If you are found guilty of breaching the protection order, you could face a fine and/or a term of imprisonment.
- Get support from family, friends or a support service.
Will my domestic violence order affect my existing family law orders?
The magistrate must consider any family law orders you have before deciding to make or vary a domestic violence order. If you have a family law order about your children, or if you have proceedings in the family law courts about your children, you must:
- tell the magistrate
- attach a copy of the order to your application for a domestic violence order, or
- give a copy to the magistrate.
A magistrate can consider changing your family law order if:
- the conditions in the order are in conflict with conditions in your domestic violence order, and
- the conditions in the order could make you, your children or anyone else named in your domestic violence application unsafe.
For example, if your family law order allows the respondent to come to your home to collect your children and these visits lead to verbal abuse, threats or any other act of domestic violence, the magistrate can vary the family law order to make the collection point away from where you live. The magistrate can also discharge or suspend your existing parenting order if they are satisfied it would be unsafe for you or the children to continue spending time with the respondent.
If you have a domestic violence order and you later apply to a family law court for a parenting order or an order about your children, you must tell the court about the domestic violence order.
If there are any differences between a parenting order and a domestic violence order, the parenting order overrides the domestic violence order.
Voluntary intervention orders
If a court makes or varies a domestic violence order it can also make a voluntary intervention order requiring the respondent to attend an intervention program, perpetrators’ program or counselling to address their behaviour. This order can only be made if the respondent is present in the court, agrees to the voluntary intervention order being made or varied, and agrees to comply. You should get legal advice about this type of order.
Does my interstate or New Zealand domestic violence order protect me in Queensland?
Yes, but you must register the order. You must complete an Application for Registration in Queensland of an Interstate Domestic Violence Order at a magistrates court. If you do not have a copy of the interstate domestic violence order, the clerk of the court can get one at no cost to you. The court will give you and the Police Commissioner a certificate of registration with a copy of the registered interstate order attached. The respondent will not be given a copy of the registration unless you agree in writing. This is to protect the identification of your location.