What the Law states - Domestic Violence

Section 20 of the Domestic and Family Violence Protection Act states as follows:

(1) A court may make an order against a person for the benefit of someone else if the court is satisfied that:

(a) the person has committed an act of domestic violence against the other person and a domestic relationship exists between the 2 persons; and

(b) the person-

(i) is likely to commit an act of domestic violence again; or

(ii) if the act of domestic violence was a threat-is likely to carry out the threat.

(2) A person who counsels or procures someone else to commit an act that, if done by the person, would be an act of domestic violence is taken to have committed the act.

(3) If an application for a protection order names more than 1 respondent, the court may make a domestic violence order or domestic violence orders naming 1, some or all of the respondents, as the court reasonably considers appropriate.

Further, this order may be extended to relatives and/or associates of the aggrieved person under section 21 of the Domestic and Family Violence Protection Act.

Under section 11 of the Domestic and Family Violence Protection Act, Domestic Violence includes any of the following acts that a person commits against another person if a domestic relationship exists between the 2 persons:

(a) wilful injury;

(b) wilful damage to the other person's property;

(c) intimidation or harassment of the other person;

(d) indecent behaviour to the other person without consent;

(e) a threat to commit an act mentioned in paragraphs (a) to(d).

Section 11 also states that the person committing the domestic violence need not personally commit the act or threaten to commit it, it is enough that they procure another person to do so on their behalf.

It is important to note that an application for a Domestic Violence Order falls under the branch of Civil Law not Criminal Law.

What the Police must prove - Domestic Violence

As this matter is a civil application, in order for the applicant to prove their case at Court, they must only prove each of the following matters on the balance of probabilities:

1. That a domestic relationships exists between the respondent and the aggrieved,

2. That the respondent committed an act of domestic violence against the aggrieved, and

3. That the respondent is likely to:

(a) Commit an act of domestic violence again, or

(b) Carry out the threat, where the original act of domestic violence was a threat.

It will be necessary for the applicant to prove the respondent was the person who committed the act of domestic violence. Click here to learn more about identification evidence.

Maximum Penalty - Domestic Violence

If an order is made, the respondent must be of good behaviour and not commit any acts of domestic violence or associated domestic violence for the term of the order. Further, the respondent must comply with any conditions set by the court for the term of the order, a common example being not contacting the aggrieved and other such persons named.

The longest that an order can remain in place is for a period of 2 years, however after such time the applicant may apply for a new order.

As a Domestic Violence Order application is a civil hearing, the Magistrate is not able to make an order that the respondent be penalised for the original act of domestic violence. However, acts of Domestic Violence may also result in charges under the Criminal Code that will result in a penalty if found guilty. If you have been charged with an offence in conjunction with a Domestic Violence Order application, click here and locate the offence on the list to obtain more information.

Further, failure to comply with a Domestic Violence Order can result in a charge under the Criminal Code for breaching that order. Click here to find out more about the charge of Breaching a Domestic Violence Order.

Which court will hear the matter - Domestic Violence

This matter is a civil matter and will be heard in the Magistrates

Court Possible Defences - Domestic Violence

As this is a civil matter, there are no Defences available to assist in defending a Domestic Violence Order application. All one can do is prove the alleged act of domestic violence did not occur or will not likely occur again.