Protection order & how to obtain one: Part I

Protection Orders are only available to protect against acts of domestic violence in personal relationships.

At LGM Family Law, we have the experience to assist you to obtain a Protection Order or to defend an order of that kind being issued where you consider allegations are unfounded. We realise however that paying private lawyer fees can be outside some people’s budgets.  Our firm can provide assistance as you require if you are needing to self represent. Fixed fee work is also available and we provide complimentary advice during your initial call to our firm.

In our next blog, we will look at where you can obtain assistance without charge to prepare and file your application for a protection order or response at Court.

Applying for a Protection Order

In Queensland, a person suffering domestic violence may apply for a domestic violence order (now known as a protection order) against the person causing that violence.

What is “domestic violence”?

You should be aware that domestic violence includes a broad range of behaviours.

The Domestic and Family Violence Protection Act 2012 (Qld) defines  “domestic violence” to mean:

“behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that—

• is physically or sexually abusive; or
• is emotionally or psychologically abusive; or
• is economically abusive; or
• is threatening; or
• is coercive; or
• in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or well being or that of someone else.”

When thinking about your situation regards a protection order, you can consider the examples of domestic violence provided by the legislation as including behaviour that:

• causes a personal injury to a person or threatens to do so;
• coerces a person to engage in sexual activity or attempts to do so;
• damages a person’s property or threatens to do so;
• deprives a person of the person’s liberty or threatens to do so;
• threatens a person with the death or injury of the person, a child of the person, or someone else;
• threatens to commit suicide or self-harm [in order to] torment, intimidate or frighten the person to whom the behaviour is directed;
• causes or threatens to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, [in order to] control, dominate or coerce the person;
• unauthorised surveillance of a person;
• unlawfully stalking a person.

Behaviour using technology that is domestic violence

If a person (first person) does any of the following in relation to another person, that first person commits an act of domestic violence which may then leave the way open for that other person to obtain a protection order:

• the first person reads the other person’s SMS messages
• the first person monitors another person’s email account or internet browser history
• the first person monitors another person’s account with a social networking internet site
• the first person uses a GPS device to track another person’s movements
• the first person checks the recorded history in a person’s GPS device

In order to qualify as “domestic violence” and obtain a protection order, the behaviour by the person must have occurred towards another person with whom that first person is in a “relevant relationship”.

Meaning of relevant relationship

A relevant relationship is—

• an intimate personal relationship; or
• a family relationship; or
• an informal care relationship

Meaning of intimate personal relationship

Two people will be considered to have an intimate personal relationship where they are or have been in a spousal relationship, an engagement relationship or a couple relationship.

For two people to be considered to have or have had a couple relationship, they do not have to have lived together at any time. In order to decide whether or not a couple relationship exists or existed, the court may have regard to the following:

1. the circumstances of the relationship between the persons, including, for example—

• the degree of trust between the persons; and
• the level of each person’s dependence on, and commitment to, the other person;
• the length of time for which the relationship has existed or did exist;
• the frequency of contact between the persons;
• the degree of intimacy between the persons.

Protection orders that may be made

Where a Protection order is made, it will require that the person who has committed the acts of domestic violence (“Respondent”) be of good behaviour and not commit acts of domestic violence.

The Order may go further by including, for example, that the Respondent not go within a prescribed distance of the person seeking the Protection order (“Aggrieved”) or the Aggrieved’s  place of residence or workplace.

Where children are involved, dependent upon the circumstances, the Court may order that they are included as named persons on the Protection Order.  Whilst an order may provide that the restrictions on the Respondent towards the Aggrieved also apply to the children, an order of this kind will often provide that the restriction for example, regards not being permitted to go near the Aggrieved does not apply for the purposes of the Respondent having contact with a child with the written agreement of the Aggrieved or order of a Court.

An order with these conditions can cause real issues for a parent being able to spend time with a child if the Aggrieved parent does not agree in writing for that to occur and where there is no order of the family courts that provides for a child to spend time with a parent.

If you have issues in this area or require assistance to obtain a Protection order or to defend an application for a Protection Order, contact our family lawyers Brisbane or contact our family lawyers Brisbane Northside. Our family lawyers at LGM Family Law have the experience to assist you in this area including the experience to assist you to resolve parenting arrangements.