Domestic violence and protection orders in Queensland

Civil order, criminal breach: why the distinction matters

An application for a protection order is decided on the balance of probabilities under section 145(3) of the Domestic and Family Violence Protection Act 2012 (Qld). That is the civil standard. The court is not deciding whether you are guilty of anything and is not bound by the rules of evidence in the way a criminal court is.

The consequences of that are practical, and they cut both ways:

• For a respondent. An order against you is not a conviction and will not appear on a national police certificate. It shows on a domestic violence history, and it is considered in weapons licensing under the Weapons Act 1990 (Qld), in blue card decisions, and by a judge assessing risk in a parenting matter.
• For an aggrieved. You do not have to prove anything beyond reasonable doubt. You do not need police to charge anyone. You do not need physical injuries. Many people assume the bar is far higher than it is and never apply.

Once an order exists the position changes completely. A contravention is a criminal offence under section 177, with a maximum of 120 penalty units or 3 years imprisonment, rising to 240 penalty units or 5 years if you were convicted of an offence under that Part in the previous 5 years. Penalty units are indexed each 1 July. The criminal side is covered on our domestic violence offences page.

What the court has to be satisfied of

Section 37 sets out three things a court must be satisfied of before it makes a protection order:

1. A relevant relationship exists. There are only three kinds. An intimate personal relationship, covering spouses, de facto partners, engaged couples and couples in a dating relationship. A family relationship, meaning a relative. And an informal care relationship, where one person depends on the other for unpaid help with daily activities.
2. The respondent has committed domestic violence against the aggrieved. Section 8 defines this broadly: physical and sexual abuse, emotional or psychological abuse, economic abuse, threatening or coercive behaviour, and behaviour that controls or dominates the aggrieved and causes them to fear for their safety or wellbeing. There is no requirement for violence in the ordinary sense of the word.
3. The order is necessary or desirable to protect the aggrieved from domestic violence. This is the limb most often argued and least often prepared for. A single historical incident with no ongoing contact and no continuing risk is a genuine argument against necessity.

Flatmates, work colleagues and neighbours are not in a relevant relationship. An application between people outside the three categories fails at the first step, so it is worth checking before anyone files anything.

Temporary orders, conditions and how long they last

Most matters begin with a temporary protection order. A court can make one when it adjourns a hearing, and it can make one in the absence of the respondent where the circumstances require it. A temporary order carries real conditions and real criminal consequences for breach, and it runs until the application is finally decided. People treat a temporary order as provisional and get charged as a result.

The conditions that matter

• The standard condition, section 56. Every Queensland domestic violence order includes it. The respondent must be of good behaviour towards the aggrieved and must not commit domestic violence against them. On its own, this condition does not prohibit contact.
• No contact and no approach conditions. These are added conditions. They prohibit contacting, attempting to contact, or asking someone else to contact the aggrieved, and they usually prohibit going within a stated distance of a home or workplace.
• Ouster conditions, sections 63 to 65. The most severe condition available. It removes the respondent from the stated premises even if the respondent owns or leases them, and it can be paired with a return condition allowing a supervised collection of belongings.
• Named persons, sections 52 to 55. Children, relatives and new partners can be named on the order and receive the same protection. A condition allowing contact for the purposes of a written parenting agreement or a court order is common, and its exact wording decides whether a text about a handover is lawful.

Duration is governed by section 97. Five years is the default, not the maximum. A shorter order has to be argued for, and the court has to state its reasons for departing from five years.

Consent without admissions

Section 51 allows a court to make a protection order where the parties consent to it or do not oppose it, whether or not the respondent admits any of the particulars in the application. This is the single most useful provision in the Act for a respondent, and it is regularly misunderstood.

Consenting without admissions means the order is made, the aggrieved gets the protection they applied for, and you have admitted nothing. It avoids a contested hearing in which the aggrieved gives evidence and is cross examined, and it saves considerable cost.

It is not automatically the right answer. Three things need to be worked through first:

• The conditions, not just the order. Consenting to a five year order with an ouster and a no contact condition is a different decision from consenting to the standard condition alone. Negotiate the conditions first.
• Any parallel criminal charge. A criminal charge and the protection order application are often listed in the same court on the same day. The sequencing matters, and anything said in the civil proceeding has to be weighed against the criminal one.
• The collateral consequences. Weapons licences, blue and yellow cards, some visa applications and some employment screening are affected. If any of those apply to you, say so before you walk into the courtroom.

If you are the aggrieved

We act for aggrieved parties as well as respondents, and the practical questions are different.

You can apply for a protection order yourself at any Magistrates Court registry, and there is no filing fee. Police can also apply on your behalf, and where police are the applicant you cannot withdraw the application. Only the court can vary or revoke an order once it is made. If you want contact restored, the way to do it is an application to vary the order, not an invitation.

Two points worth knowing:

• You cannot be charged for a breach of an order that protects you. Section 180 makes clear the aggrieved does not commit an offence by being involved in or encouraging a contravention. That protection exists so that breaches get reported.
• Cross applications are decided together. Where both people have applied against each other, section 41G requires the court to consider both applications at the same time and, where possible, decide who is the person most in need of protection under section 22A rather than making two orders. Section 22A directs the court to the history of the relationship, the severity of harm caused by each person, the level of fear each has, and who has the capacity to control or dominate the other.

For immediate safety, call 000. DVConnect Womensline on 1800 811 811 and Mensline on 1800 600 636 operate around the clock in Queensland, and 1800RESPECT is available on 1800 737 732.

Where domestic violence meets family law

Almost every protection order matter involving children has a family law dimension, and the two systems run in different courts under different Acts.

The connector is section 68R of the Family Law Act 1975 (Cth). A Queensland Magistrates Court making or varying a protection order can revive, vary, discharge or suspend an existing parenting order, but only if it has material before it that was not before the court that made the parenting order. That power exists so an aggrieved is not forced to choose between complying with a parenting order and complying with a protection order.

The limit is section 68T. Where the change is made while only a temporary protection order is in place, the change to the parenting order stops when the temporary order stops. It is a stopgap, not a substitute for a properly varied parenting order.

Domestic violence also feeds into the best interests assessment in a parenting matter and into the future needs analysis in a property settlement. Read our parenting and custody page next, or start at the family law section.