We help you move on from the breakdown of a relationship with confidence, clarity & peace of mind.
Domestic violence is a serious issue in our community It is important that if you are a victim of domestic violence you understand that you can seek assistance.
At Lewis & McNamara, we understand the emotional and financial impact that Domestic Violence can have you on and your loved ones.
We work with you to lift the cloud of uncertainly from the domestic violence application process and provide clear and concise to empower you move forward with clarity, security and closure.
Here is a little more information to help you understand the road forwards:-
What is Domestic Violence?
Section 8 of the Domestic Violence and Family Protection Act 2012 (Qld) (the “Act”) provides that domestic violence behaviour by a person towards another person with whom the first person is in a relevant relationship 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 and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.
Further, section 8(2) provides that domestic violence also includes the following behaviour:-
- causing personal injury to a person or threatening to do so;
- coercing a person to engage in sexual activity or attempting to do so;
- damaging a person’s property or threatening to do so;
- depriving a person of the person’s liberty or threatening to do so;
- threatening a person with the death or injury of the person, a child of the person, or someone else;
- threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;
- 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;
- unauthorised surveillance of a person;
- unlawfully stalking a person.
The evidentiary threshold to be proven in domestic violence matters is relatively low and section 145 provides that the Court is not bound by the rules of evidence and further, that the Court may inform itself in any way it considers appropriate.
Step 1: An Application is lodged
An Application is lodged in the Magistrates Court alleging domestic violence. The Application may seek the mandatory orders only, which are that the Respondent (the party against whom the allegation of domestic violence has been made) be of good behaviour towards the Aggrieved (the party who is the victim of the alleged domestic violence), and to not commit an act of domestic violence. An application may also seek additional orders for the Respondent to not approach the Aggrieved at work or at home or anywhere else, and orders not to contact the Aggrieved.
Step 2 : The courts sets a date
The Court sets a date for the matter to be mentioned, and the documents are served on the Respondent.
Step 3: Once the Respondent is served with a domestic violence application
Once the Respondent is served with a domestic violence application, the matter will dealt with by a Magistrates Court.
- At the first mention the Respondent has the following options:-Consent to an order being placed upon them for a certain period of time (at which time the Respondent can generally seek that the court note the record that they do not admit any of the matters pleaded in the Application, but they are willing to have an order placed upon them);
- Seek to have the matter set down for a hearing to challenge the allegations made.
Applications can made either by individuals themselves, or by Queensland Police Service on their behalf. Generally, Applications made by the Queensland Police Service are not likely to be withdrawn by the Queensland Police Service, and any such Application made will likely proceed to a full hearing in circumstances where agreement cannot be reached in relation to an order.
If the matter is listed for a hearing the Court has the option of putting in place an order on an interim basis until the final hearing takes place. The Court can also require the parties to attend mediation. As the Court cannot make findings in relation to disputed facts at the initial hearing, the Court will generally err on the side of caution and issue interim orders if requested by the Aggrieved with the grounds shown on the application itself. It is not the Court’s job at that stage to conduct a full hearing, or to test the evidence sought to be led by the Aggrieved.
Step 4 : The final hearing
A final hearing is where the evidence of the parties is tested. The Court’s generally require written affidavits to be drawn and filed, and cross-examination can take place in Court. To make an order, the Court must find on the balance of probabilities that domestic violence has occurred, and that there is a risk of domestic violence occurring in the future. If a domestic violence order is to be made, it will generally remain in place for a period of anywhere between 12 months to 2 years.
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