Relationship difficulties and breakdowns are a sad reality of modern life. Difficulties can arise in any relationship – with your spouse or partner, your ex, adult children, at work, even between flatmates. In today’s high pressure, fast-paced world, relationship difficulties or breakdowns can sometimes involve actual or threatened violence. At times of stress or when emotions are running high, some people “lose their cool”, while others routinely use intimidation or violence to control another person. Occasionally, one person thinks they may gain an advantage by untruthfully alleging violence by another person.
If you find yourself in such a situation, can you get help? Maybe someone claims you have been violent towards them and has sought a domestic violence or peace and good behaviour order against you. What can you do?
Domestic violence protection
The Courts and police take domestic violence seriously. Domestic violence includes physical or sexual abuse, emotional or psychological abuse, economic abuse or financial control, and behaviour that is threatening, coercive, controlling or dominating, causing the victim to fear for his or her safety or welfare, or the safety or welfare of someone else. Domestic violence also includes exposing children to such behaviour.
The Domestic and Family Violence Protection Act sets out a regime to protect someone who fears or has experienced domestic violence from someone with whom the victim has or had a “relevant relationship”. Such a relationship includes a partner or spouse, a fiancé or fiancée, someone with whom the victim has a child, a child, any other relative or step-relative, and a carer or someone for whom care is provided. A “relevant relationship” can also include a couple relationship, even if the couple are not living together, depending on the degree of commitment and financial and other interdependence between the two people.
Police Protection Notice
In the first instance, the police could issue a Police Protection Notice. The purpose of such a Notice is to provide the victim with immediate protection from the alleged perpetrator. The Notice would require the alleged perpetrator to go to Court where the Court would decide whether to issue a Domestic Violence Order.
Domestic Violence Order
You or, if they agree, a police officer on your behalf can apply to the Court for a Domestic Violence Order, if you have experienced domestic violence and the Court considers the Order is necessary to protect you from further domestic violence. If granted, a DVO could prevent the perpetrator from:
- committing domestic violence
- exposing a child to domestic violence
- remaining in or entering the victim’s home, workplace, school or other premises, even if the perpetrator is the owner or tenant of those premises
- approaching, contacting or locating the victim, or attempting to do those things
- damaging or using the victim’s personal property
- retaining personal property of the victim
- causing someone else to do any of those things to the victim
- retaining any weapon used to harm or threaten the victim
- holding a firearms’ licence.
When making a DVO, the Court can also order that the perpetrator attend an intervention program or counselling to increase his or her sense of accountability for the domestic violence and to encourage him or her to overcome domestic violence related behaviour.
It is possible to obtain a DVO against a minor child, but only where the child and the victim were in an intimate personal or carer relationship.
What about parenting orders?
When granting a DVO the Court will take into account and, if necessary, vary Family Court parenting orders, if the parenting order is inconsistent with the Domestic Violence Order. In doing so, the Court must always treat the safety of the victim and any affected child as the paramount consideration.
What if I’m not related to the perpetrator?
The Peace and Good Behaviour Act contains provisions similar to those in the Domestic and Family Violence Protection Act for the personal protection of victims of assault or property damage, where the perpetrator and the victim are not members of one another’s family and where the victim is in fear of the perpetrator.
If the Court finds that someone has engaged in conduct prohibited by this Act, it may order that the perpetrator keep the peace and be of good behaviour.
What happens if the order is breached?
If someone breaches a DVO, he or she could be arrested and prosecuted. The maximum penalty is three years’ imprisonment or a fine of 120 penalty units ($16,542), or five years’ imprisonment or a fine of 240 penalty units ($33,084) if there has been a conviction of domestic violence within the prior five years.
The maximum penalty for breaching a Peace and Good Behaviour Order is one year’s imprisonment or a fine of 100 penalty units ($13,785).
Can I defend an application against me for such an order?
Yes. You may want to challenge an application against you for a DVO or Peace and Good Behaviour Order, if, for example, your version of what occurred differs from that of the alleged victim. It is also possible to appeal a Court’s decision to grant such an Order.
Today, the Courts and police take the issue of domestic violence and personal safety very seriously. The definition of domestic violence is broad, as is the range of conduct which could give rise to a Peace and Good Behaviour Order. Breaches of such orders are also treated seriously, and the Court has the power to impose a range of significant penalties, including imprisonment.
If you or someone you know wants more information or needs help or advice, please contact us on (07) 4724 1016 or email [email protected].