Domestic violence (DV) behaviour can be described as physical or sexually violent; emotional or psychological; threatening, physically or financially controlling…
If a person needs protection they can make an application for a domestic violence order in the Magistrates Court. Support persons or solicitors can assist a person if they feel they need help to make an application.
Aggrieved are persons who have experienced domestic violence behaviour and have made an application in the Court. Respondents are persons who are named by the aggrieved as the person whose behaviour has caused them to fear for their safety.
The options available to the respondent are to consent without admissions (not admitting that they have engaged in DV) or agree for the matter to go trial.
Should a protection order be made then this order will remain in place for up to five (5) years. The conditions listed on the order tell the respondent the requirements of the protection order whether it is to be of good behaviour or where the court has placed stronger restrictions on contact with the aggrieved, including contact with children of the parties.
Either the aggrieved or the respondent can make an application to vary the protection order, this may be to add a named person to the order, or to seek variance of the conditions of the order.
In Domestic Violence the rules of evidence are lowered. The Court’s job is to protect the aggrieved from further incidents of domestic violence.
The accusations that the aggrieved may have made, need to be disproved. If a respondent has no evidence to dispute the claims it can be difficult to prove that what is claimed to have been said, or done did not happen.
A respondent has three options.
- Fighting the application by putting in an affidavit and providing evidence that the respondent did not enter into domestic violence. Should the Magistrate not dismiss the application then the matter may be set for trial.
- A Respondent may enter into an undertaking with the aggrieved that they will not enter into any of the behaviours that fall within the definitions of the Domestic Violence definitions.
- ‘Consent without admissions’ this means that the respondent is not agreeing that any domestic violence was undertaken into however the protection order is consented to.
A protection order is a civil order and may be made for up to five (5) years.
Should a respondent breach a protection order a respondent may stand before the Court on criminal charges.
The Court decision is based on three elements:
- Whether there is a relationship;
- Whether it is necessary; and
- Whether it is desirable.
Legislation meaning of domestic violence:-
Meaning of domestic violence
(1) Domestic violence means behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that—
(a) is physically or sexually abusive; or
(b) is emotionally or psychologically abusive; or
(c) is economically abusive; or
(d) is threatening; or
(e) is coercive; or
(f) in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.
(2) Without limiting subsection (1), domestic violence includes the following behaviour—
(a) causing personal injury to a person or threatening to do so;
(b) coercing a person to engage in sexual activity or attempting to do so;
(c) damaging a person’s property or threatening to do so;
(d) depriving a person of the person’s liberty or threatening to do so;
(e) threatening a person with the death or injury of the person, a child of the person, or someone else;
(f) threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;
(g) causing or threatening to cause 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;
(h) unauthorised surveillance of a person;
(i) unlawfully stalking a person.
(3) A person who counsels or procures someone else to engage in behaviour that, if engaged in by the person, would be domestic violence is taken to have committed domestic violence.