If you have found yourself in the position of needing protection from domestic violence or, alternatively, facing the prospect of being subject to a protection order, you may need to consider the various forms a protection order may take, the conditions that can be imposed and the implications of those conditions, to ensure you are appropriately protected by, or comply with, the protection order.
What is the difference between a temporary and a final protection order?
Protection orders can be imposed upon a person (known as a “respondent”) temporarily, or for a longer period of time on a final basis.
In Queensland, the Domestic and Family Violence Protection Act gives magistrates the power to decide whether to make a protection order temporarily to protect a person (the “aggrieved”) from domestic violence, and for that order to commence immediately upon the first hearing of the aggrieved’s application at court.
A final protection order is one for a set amount of time, usually five years in Queensland, and means the matter is resolved and does not return to court again.
Both temporary and final protections orders:
- can include other named persons, such as the spouse or parent of the aggrieved, as well as any child, should the magistrate be satisfied that other persons, including children, are at, or have been at, risk of being subject to domestic violence, including threatening behaviour;
- can be enforced by the police if contravened, which is a criminal offence.
What types of conditions might be put in place?
Protection orders on either a temporary or final basis will specify conditions that the respondent must abide by, such as any or all of the following examples:
- to be of good behaviour and not commit domestic violence;
- to stay away from the aggrieved, including to not approach or come within a certain distance of the aggrieved; and/or
- to not contact the aggrieved, including by email, telephone or via social media, or that contact is limited.
In matters where the aggrieved and respondent have children, orders can be crafted by the court to allow for contact with children by the respondent, including where it may mean seeing or contacting the aggrieved, as an exception.
How does the court prove domestic violence occurred?
With a temporary protection order, the magistrate has to be satisfied that domestic violence has been committed, without cross-examination of the parties or any in-depth consideration of the specific facts of the case. That is, a temporary protection order will be made if the magistrate hearing the application is satisfied that domestic violence in any form has been committed by the respondent toward the aggrieved or any named person. If satisfied, the magistrate has the ability to immediately impose conditions upon the respondent to prohibit domestic violence from occurring by way of a formal protection order for a short period of time, being until the next court date.
After the first court date, and if the aggrieved or police seek to continue prosecuting the application against the respondent for a final protection order, the court will:
- set the matter down for a trial, if the respondent denies the allegations; or
- make a final order by consent of both the aggrieved and the respondent.
At a trial, the magistrate who hears the case will make “findings of fact”, which means they will determine whether or not the respondent committed the domestic violence that has been alleged after hearing the parties give oral evidence.
If an aggrieved and respondent consent to the order, it can be without admission by the respondent, meaning that no findings are made by the court about whether domestic violence has occurred.
How does a protection order affect me?
The type of protection order, the conditions imposed upon a respondent, as well as whether there were any findings of fact in the making of the order, can impact on various areas of a person’s life such as:
- their ability to work in certain roles, including in some government roles, security work or roles requiring clearances;
- their ability to hold a Blue Card;
- their ability to hold or access weapons.
It is important to note that immediately upon a temporary protection order being made, a respondent will no longer be able to hold a weapons licence under the Weapons Act 1990 (Qld). Any guns owned by a licence holder subject to a protection order will need to be surrendered to the police or disposed of via a licensed weapons dealer.
Anyone in need of protection from domestic violence, or requiring assistance in responding to an application for a protection order, should make contact with an experienced family lawyer in Toowoomba.