National Domestic Violence Order legislation
In 2015, the Council of Australian Governments (COAG) agreed that all states and territories introduce model laws to automatically recognise and enforce Domestic Violence Orders across Australia.
All states and territories have now passed legislation implementing a framework for the national scheme. This means that AVOs (provisional, interim and final) made in any state or territory on or after 25 November 2017 will automatically be recognised and therefore enforceable in all other states and territories. For AVOs made prior to 25 November 2017, an application for registration can be made to a court in the state or territory in which the person is living.
Protection orders in other states and territories
Australian Capital Territory
Family Violence Orders made under the Family Violence Act 2016 (ACT) can protect domestic partners (including people in same-sex relationships), intimate partners, relatives, or children or parents of such persons. Family violence is recognised as including physical violence, sexual violence, emotional or psychological abuse, economic abuse, threatening behaviour, property damage, harming animals and stalking.
In the ACT police usually do not make the applications on behalf of a person seeking a domestic violence order; the person makes their own application to the Magistrates Court.
The Domestic and Family Violence Act 2007 (NT) enables a person seeking protection to apply to the court for a Domestic Violence Order (DVO). Police may also make an application for a DVO on behalf of the protected person. A court issued DVO is usually made for one year, but may be made for a longer period if necessary. A police issued DVO is taken to be a summons to the defendant to appear at court and show cause as to why the order should not be confirmed. There is no specified time limit for the duration of a police issued DVO.
DVOs can be tailored to suit the circumstances of the person needing protection and may include an order that the defendant be required to take part in a rehabilitation program or orders for replacement tenancy agreements. A DVO may restrain the defendant from contacting the protected person directly or indirectly, or may allow for contact but restrain the defendant from harassing, threatening, verbally abusing or assaulting the protected person. A ‘non-intoxication DVO’ may restrict the defendant from having any contact with the protected person when the defendant is intoxicated by alcohol or other substances but allow for contact at other times.
In 2009, the Northern Territory government introduced mandatory reporting of domestic violence incidents in addition to mandatory reporting in relation to child abuse. The laws apply to anyone in the Northern Territory who believes a child has suffered, or is likely to suffer harm or exploitation or be a victim of a sexual offence. Further, all adults are required by law to report domestic and family violence if they think someone has or is likely to suffer serious physical harm because of the violence.
The Northern Territory’s first specialist Domestic Violence Court is currently being trialled in Alice Springs.
The Intervention Orders (Prevention of Abuse) Act 2009 (SA) provides for intervention orders to be made for the protection of people from domestic and non-domestic abuse, and the exposure of children to domestic and non-domestic abuse. The Act has a broad definition of ‘abuse’ which includes physical, sexual, emotional, psychological and economic abuse.
Under the Act, an intervention order may be issued for the protection of any person who has reasonable grounds to suspect that the defendant will, without intervention, commit an act of abuse against them. It may also be issued to protect any child who may hear or witness, or otherwise be exposed to the effects of, an act of abuse committed by the defendant against a person. The order can be issued by police on the spot (called an ‘interim intervention order’) or may be issued by the court. Once an intervention order is confirmed by the court, it remains in effect indefinitely unless a party makes an application for it to be varied or revoked. The defendant can only apply for a variation or revocation after 12 months of the order being in place. The terms of the order can be tailored to meet the needs of the person seeking protection.
Domestic violence is defined by the Domestic and Family Violence Act 2012 (Qld) and covers a wide range of behaviours, such as physical, sexual, emotional, psychological and economic abuse, threats or coercion and any other conduct that controls or dominates a person and causes them to fear for their safety or wellbeing or that of another person.
A person can apply for a protection order if they are or were in an intimate personal relationship. Intimate personal relationships are those where the parties are/were:
- de facto (including same sex couples)
- biological parents of a child (including parents recognised under Aboriginal tradition and Torres Strait Islander custom) and any other person exercising/having parental responsibility for the child
- in a couple relationship (requires more than just dating)
- where the violent person is the person’s relative or carer.
Before making an order, the magistrate must be satisfied that:
- a relationship (outlined above) exists; and
- domestic violence had been committed against the person; and
- the Protection Order is necessary or desirable to protect the person from violence.
The Family Violence Act 2004 (Tas) covers people in ‘family relationships’. The term includes a marriage or a ‘significant relationship’ such as de facto relationships (including same-sex relationships). The Act allows protective orders to be issued by senior police officers (Police Family Violence Orders – PFVO) or a magistrate in the Magistrates Court (Family Violence Orders – FVO). The Act recognises a broad range of behaviours as constituting family violence and also creates distinct offences of economic abuse and emotional abuse or intimidation.
A police officer may issue a PFVO against a person if satisfied that the person has committed, or is likely to commit, a family violence offence. A PFVO lasts for a period of no more than 12 months. A PFVO will be revoked if an FVO or interim FVO is issued in respect of the same parties.
A police officer of the rank of inspector or above may vary a PFVO where:
- the victim and the alleged offender consent to the variation; and
- the variation will not affect the safety and interests of the victim or any affected child.
If the police are unable to vary the PFVO, a court may vary, extend or revoke a PFVO at any time on application.
If a magistrate grants an FVO, it will remain in force for such period as the magistrate considers necessary to ensure the safety and interests of the victim or until an application is made to revoke the FVO. The usual length of an FVO is 12 months. An application to vary, extend or revoke an FVO may be made to the court at any time. The magistrate must consider the safety and interests of the victim and children and if there has been a substantial change in the circumstances since the order was made.
The Justices Act 1959 (Tas) provides for restraining orders for protection from violence for people in other types of relationships.
The Family Violence Protection Act 2008 (Vic) provides a framework for family violence intervention orders (FVIO) to be made by the Magistrates’ Court against family members. Family members include spouses, domestic partners, people in intimate close relationships and relatives.
Family violence has a broad definition under the Act and includes economic abuse and behaviour that is in any way controlling or dominating of a family member. Family violence includes behaviour that a child witnesses (hears or sees) or is exposed to.
Police or an affected family member may apply to the court for an FVIO. The Act also provides that police may issue a family violence safety notice at the time police attend an incident outside of court business hours.
Magistrates’ Courts in Victoria have specialised lists that deal with family violence cases. There are a limited number of courts in Victoria that have specialist applicant and respondent support workers. A limited number of courts can also make mandated orders for respondents to attend men’s behaviour change program. These orders are however dependent on the number of funded places available in these programs.
Under the Restraining Orders Act 1997 (WA), a court can make a Violence Restraining Order (VRO) for the protection of a person in a ‘family and domestic relationship’.
A family and domestic relationship can include persons who are, or were, married, in a de facto relationship, in an intimate personal relationship or other personal relationship with each other, and persons who are related to each other.
To make a VRO, the court must be satisfied that either an ‘act of family and domestic violence’ has been committed against the person seeking to be protected, and that it is likely to occur again; or that the person seeking to be protected reasonably fears that an ‘act of family and domestic violence’ will be committed against them. The court must also be satisfied that it is appropriate in all the circumstances to make a VRO.
An ‘act of family and domestic violence’ is defined broadly to include assaults, personal injury, kidnapping or deprivation of liberty, damage to property or pets, behaving in a manner which is intimidating, offensive or emotionally abusive, and threats to do any of these acts.
Applications for VROs can be made by the person seeking protection or a police officer on behalf of that person. Applications should usually be made in person, however, in unique circumstances they can be made by telephone.
Initially, VROs are made on an interim basis to allow a respondent to object if they wish. Once a VRO is made final, it will remain in force for two years unless specified otherwise by the court.
Separate to the VRO process, Western Australia also has specialist Family and Domestic Violence courts which deal with persons who have been charged with criminal offences that involve family and domestic violence. These courts offer a therapeutic case-management-based approach to dealing with offenders who plead guilty to such offences.
The Domestic Violence Hot Topic is intended as an introductory guide only and should not be interpreted as legal advice.