Victims in the spotlight
Ongoing advocacy and increased media coverage of the issue has, among victims, perpetrators and the broader community, led to greater awareness of what constitutes domestic and family violence.
"Domestic" and "family" violence might at first seem a redundant term, but they are used independently to capture the experiences of all people – for example, partner violence, elder abuse and violence between other family members.
Police and court statistics across Australia suggest that more victims are coming forward to report cases of domestic and family violence. Usually, they are seeking safety in form of a domestic violence protection order.
Confusing in the beginning
Choosing a legal avenue of support and protection can be daunting, as much as it is confusing, for those experiencing abuse. Alleged offenders are equally confused by the law and its anomalies.
Within the legal system, there are differences between criminal and civil law. Therein lies the biggest challenges to those who need to engage with the justice system.
So, what actually happens when someone applies for a protection order?
Since protection orders fall under state and territory rather than federal law, their nature and conditions can vary across jurisdictions.
Those who are protected
As a general rule, protection orders are available for various forms of domestic and family violence, including:
- physical or sexual abuse
- emotional or psychological abuse
- economic abuse
- threatening behaviour
- coercive behaviour, or
- any other behaviour that threatens or controls a person and causes them to fear for their personal safety or wellbeing.
All protection orders include at least one victim, and one abusive person. However, more than one person can be protected by an order – potentially, the victim's children, other family members and/or a new partner.
Who lodges the application?
There are two predominant forms of domestic violence protection orders – police applications and private applications.
In the case of police applications, the police complete and lodge the application. Private applications can be made by the immediate victim or another party authorised by the victim to act on her or his behalf. In some instances, a court may decide to make an order without prior application.
Police and private applications must be lodged in court, require a magistrate's decision, and come into force only once the respondent has been served.
Because there can be delays when serving orders, victims are often confronted with ongoing abuse. This can be particularly challenging when a respondent actively avoids police contact.
The process of issuing an order
When an application is lodged, a magistrate considers the details.
For an application to be granted, a victim must always appear in court.
However, protection orders can be granted in the absence of an alleged abuser, providing the perpetrator has been told about the application and the court date.
When an alleged abuser does attend court, he or she can agree or disagree to an order. If they disagree, a subsequent court hearing will be scheduled and a temporary order might be issued to protect the victim in the interim.
In most cases, respondents agree to an order being made, often without admitting to specific domestic or family violence allegations against them.
If both parties are in court, an order is served then and there, and takes immediate effect.
If the respondent does not attend, and an order is granted in their absence, the order does not take effect until the respondent has been served. In other words, an order does not offer legal protection to the victim – or any other parties named on the order – until police provide the respondent with a copy of the order.
What an order says and does
Protection orders tell perpetrators what they cannot do. Each order contains a list of standard conditions, specifying that a respondent cannot engage in any subsequent acts of domestic and family violence.
In addition, an order might say that the respondent is not allowed to make contact with the victim and any other party listed in the order, either directly or via another person. It might also say contact is restricted to scheduled phone calls relating to child contact, where contact with children is allowed.
Once a respondent has been served with an order, subsequent acts of domestic and family violence constitute a criminal offence.
This means any breach of the order - as issued under civil law - becomes grounds for criminal charges. If, for example, no contact was specified on the order, verbal abuse or sending text messages to the victim could be regarded a criminal offence, as much as it can for any subsequent acts of physical violence.
This is different to other countries where offences are listed in the criminal code. In the UK for example, certain initial acts of domestic and family violence are specified as criminal acts, including some non-physical types of abuse, such as strategic and coercive control of the victim.
Across Australia, initial acts of domestic and family violence are only considered criminal if they meet the definition of an offence under the relevant state or territory criminal code. Examples include assault, harassment, sexual assault, deprivation of liberty or stalking.
When the protection begins
In addition to final court orders, police have the power to issue temporary protection orders which vary in length from 24 hours up to 12 months – or until an application for a final protection order is heard in court.
Some of Australia's domestic and family violence-related protection laws have further increased their emphasis on protecting victims and children, and on perpetrator accountability. New South Wales for example, now offers video links as a way for victims to give evidence. And perpetrators are no longer allowed to cross-examine affected children as witnesses in criminal proceedings.
Queensland's legislation has undergone similar reforms, extending the duration of a final protection order from 2 to 5 years. The maximum penalty for breaches of protection orders has been increased from 2 to 3 years for initial breaches, and 3 to 5 years for subsequent ones.
Overall, durations of court-issued protection orders vary from jurisdiction to jurisdiction, which can make things more confusing for victims who move interstate.
National change
To minimise challenges experienced by victims moving interstate, Australian states and territories are looking to implement a National Domestic Violence Order Scheme.
Under this new scheme, victims will no longer have to register their current protection order when moving interstate.
The onus of ensuring that legal protection is in place and 'active' is taken away from the victim who is trying to rebuild a violence-free life. It is further designed to minimise the risk of a victim being tracked down by an abuser who were previously notified when a protection order was registered in a new state.
Do protection orders work?
The number of breaches reported each year, along with several incidents of domestic homicide where a protection order was in place, paints a grim picture.
In the end, a protection order is only a piece of paper. Whether a perpetrator complies with the conditions listed in an order depends greatly on their motivation to change, whether police respond swiftly and adequately to any breaches, and whether the perpetrator fears consequences such as arrest, fines, community service or prison.
Research commissioned by Australia's National Research Organisation for Women's Safety showed that the enforcement of protection orders by police plays a critical role in protecting victims from subsequent harm.
While a substantial number of orders are breached, applying for an order is an important step in providing police with greater powers to respond more protectively to subsequent acts of domestic and family violence. A protection order can empower victims to seek help, and gives police more opportunities to hold the perpetrator accountable.
- Dr Silke Meyer is a lecturer in domestic and family violence practice at the Central Queensland University's School of Nursing and Midwifery, which is host to the Queensland Centre for Domestic and Family Violence Research. She is also a member of the Queensland DFV Death Review and Advisory Board.