Information for an Applicant in a Private Application



What is domestic violence?

Domestic violence is:

  • physical or sexual abuse
  • emotional or psychological abuse
  • economic abuse
  • threatening behaviour
  • coercive behaviour or
  • behaviour that in any way controls or dominates or causes a person to fear for their personal safety or wellbeing by one person towards another person.

The ‘aggrieved’ is the person who needs protection from domestic violence, and the ‘respondent’ is the person from whom the aggrieved seeks protection.


What does the court consider?

There are three matters that the Court must be satisfied are answered by a domestic violence application:

  1. Is there a relevant relationship between the aggrieved person and the respondent?
  2. Has there been at least one act of domestic violence?
  3. Is it necessary or desirable for the aggrieved to be protected?
What is a relevant relationship?

A relevant relationship is:

  • An intimate personal relationship – spousal, engagement or couple;
  • A family relationship – a relationship between two people if one of them is or was the relative of the other; or
  • An informal care relationship – a relationship between two people if one of them is or was dependent on the other person for help in daily living.
Is it ‘necessary or desirable’ for the aggrieved to be protected?

In deciding whether to grant a DVO, the court must evaluate if it is necessary or desirable to protect the aggrieved, their children and any other people named in the application. The court will consider and assess:[1]

  • The risk of future domestic violence between the parties if there was no order;
  • The need to protect the aggrieved from that domestic violence if there was no order;
  • Various principles contained in legislation, including:[2]
    • The safety, protection and wellbeing of people who fear or experience violence, including children are paramount;
    • People who fear or experience domestic violence should be treated with respect and disruption to their lives should be minimised; and
    • In circumstances in which there are conflicting allegations, for example in cross-applications, the person who is most in need of protection should be identified.
  • Any previous DVO, and compliance or non-compliance by the respondent.

Private DVO applications

Domestic violence orders (DVOs) are official documents issued by courts to stop threats or acts of domestic violence. The aggrieved, a solicitor, guardian or authorised person (such as a relative or community/welfare worker) can make an application for a domestic violence order (DVO) without the incident being investigated by the police. A DVO can stop someone from:

  • Approaching the aggrieved at their home or work or contacting you through other means
  • Staying in a home the parties share, even if the house is owned or rented in respondent’s name
  • Approaching the aggrieved person’s relatives, friends and children (if named in the order)
  • Going to a child’s school or day care centre

Application process

An online form (Form DV1) can be found in the Queensland Courts website. Alternatively, a hardcopy form can be filled out and filed in the Magistrates Court. The aggrieved must include the following information:

  • The aggrieved person’s details (if they do not wish their home address to be known by the respondent, they can provide a solicitor’s address, post office box or complete an ‘Aggrieved Details Form’ separate to the application);
  • The respondent’s details;
  • The applicant’s details;
  • Reasons why a temporary protection order is necessary or desirable before the respondent is served with a copy of the application (read more about protection orders here);
  • Relationship between the aggrieved and respondent;
  • Grounds for a protection order – including where, when and how the actions amounting to domestic violence happened, if anyone was there, any injuries incurred by the aggrieved or others, and how the violence has affected the aggrieved;
  • Details of the children of the aggrieved, and any children who usually live with the aggrieved;
  • Details of the relatives or associates who the aggrieved would like to name on the order to also be protected;
  • If the respondent possesses a weapon or a weapon licence
  • Details of any other orders, such as a Family Court Order or another DVO
  • Conditions sought in the order
  • Statutory declaration – a statement signed by the aggrieved declared to be true and correct in front of a witness

A request can be made that the matter be considered on an urgent basis, where an order can be made on the same day as filing the application.

The aggrieved is not required to serve the application themselves; the court registry will provide the police with a copy of the application and they will ensure the respondent is served with the application.


Conditions of DVOs

All DVOs have two compulsory conditions stating that:[3]

  1. The respondent must be of good behaviour towards the aggrieved and must not commit domestic violence, and;
  2. The respondent must be of good behaviour towards any person named in the order and not commit associated domestic violence against the named person.

The court can also order other conditions necessary and desirable in the interests of the aggrieved and named persons.[4] This can include conditions prohibiting the respondent from contacting or approaching the aggrieved and other named persons, attending the aggrieved person’s place of residence or work, and specifying a distance from the premises that the respondent must maintain. Visit the ‘Conditions of DVOs’ page for more information. Visit the ‘Conditions of DVOs’ section of the Domestic Violence page for more information. 


Court process

The aggrieved will need to attend court as required by the magistrate/judge.

The first court date after a DVO application is filed is a ‘mention’. If the aggrieved is worried about their safety, they fill out a safety form to wait in a safe area away from the respondent.

If both parties attend the mention and agree to the order, the court may make a final protection order. In consenting to the order, the respondent does not necessarily have to admit to the domestic violence (read more about “Consenting without Admission” here). If the parties do not agree on an order, the court may set a date for a hearing. The court may issue a temporary protection order until the hearing (read more about protection orders here).

If the respondent does not appear at the mention and has been provided with the application by the police, the court can make a final protection order in their absence (read more about protection orders here).

Final protection orders are made for a minimum of 5 years unless the court is satisfied a shorter order can be made. Importantly, a DVO will not appear on a respondent’s criminal history. However, contravention of any DVO is a criminal offence. If charged successfully, this will appear in the respondent’s criminal history.

A DVO made in Queensland can be registered and enforced in all Australian states and territories and in New Zealand. Similarly, a DVO made in another Australian state or territory or in New Zealand can be registered for enforcement in Queensland.


How can Robertson O’Gorman help?

It is recommended that the applicant seek assistance in completing their application so that the safety needs of the aggrieved are met and to avoid the risk of the application being delayed or dismissed. Robertson O’Gorman has extensive experience in providing legal advice regarding DVO applications. Call us today on 3034 0000 or log an enquiry through our Free Case Appraisal.


Footnotes

[1] MDE v MLG & Queensland Police Service [2015] QDC 151; ACP v McAulliffe [2017] QDC 294; RC v MM [2018] QDC 276.

[2] Domestic and Family Violence Protection Act 2012 (Qld) s 4.

[3] Domestic and Family Violence Protection Act 2012 (Qld) s 56.

[4] Domestic and Family Violence Protection Act 2012 (Qld) s 57(1).