When can a Court make a Domestic Violence Order?

Case study – ZTP v BBY [2023] QDC 59

The purpose of our Domestic Violence legislation is to ensure that people who fear or experience domestic violence are protected and kept safe.[1]

The Domestic and Family Violence Protection Act (DVFPA) achieves this goal by providing a victim of domestic violence with a Domestic Violence Order (DVO) provided by the Court.

A DVO is a Court order that is generally made by a Magistrate, designed to protect the aggrieved, their children, or others who are named on the order. The making of a DVO is not a criminal offence, nor is it a criminal proceeding.

Contravening or breaching a DVO made by the Court is a criminal offence and carries a maximum penalty of 120 penalty units or three (3) years imprisonment. However, the penalties are more severe if you have a prior conviction for a DV offence within the last five (5) years.

For the Court to make a protection order, it must be satisfied that:

1. A relevant relationship exists between the parties and;
2. In the context of that relationship, domestic violence has occurred and;
3. That it is necessary and desirable in all the circumstances for the Court to make an order.

It is important to note that the Legislation provides a broad definition of what domestic violence is. Section 8 of the DVFPA defines domestic violence to include[2]:

Behaviour, or a pattern of behaviour, by a person towards another person in a relevant relationship that is:

1. (a) is physically or sexually abusive; or
2. (b) is emotionally or psychologically abusive; or
3. (c) is economically abusive; or
4. (d) is threatening; or
5. (e) is coercive; or
6. (f) in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.
7. (2) Behaviour, or a pattern of behaviour, mentioned in subsection (1) —
8. (a) may occur over a period of time; and
9. (b) may be more than 1 act, or a series of acts, that when considered cumulatively is abusive, threatening, coercive or causes fear in a way mentioned in that subsection; and
10. (c) is to be considered in the context of the relationship between the first person and the second person as a whole.
11. (3) Without limiting subsection (1) or (2) , domestic violence includes the following behaviour—
12. (a) causing personal injury to a person or threatening to do so;
13. (b) coercing a person to engage in sexual activity or attempting to do so;
14. (c) damaging a person’s property or threatening to do so;
15. (d) depriving a person of the person’s liberty or threatening to do so;
16. (e) threatening a person with the death or injury of the person, a child of the person, or someone else;
17. (f) threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;
18. (g) causing or threatening 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, so as to control, dominate or coerce the person;
19. (h) unauthorised surveillance of a person;
20. (i) unlawfully stalking, intimidating, harassing or abusing a person.

Can the Court refuse to make a protection order despite there being evidence of domestic violence?

The short answer is yes. For a Court to make a protection order, it must satisfy the three elements we discussed above. It is not merely enough to show that a relevant relationship exists and that an act of domestic violence has occurred; the Court must be satisfied that it is necessary and desirable in all the circumstances.

A recent decision from the District Court of Queensland highlighted that even though domestic violence occurred, it was not necessary or desirable in all the circumstances to make a final order.

The decision of ZTP v BBY [2023] QDC 59 is significant because, on an appeal to the District Court, the Judge found that the Magistrate did not take into account the elements of necessity and desirability, and, as such, found that the order should not be made.

Facts of case

On July 26, 2022, the Magistrate made an order for a final protection order in the Holland Park Magistrates Court. The order was for two years against the appellant (ZTP) naming his de facto partner (MNP) as the aggrieved. There were no children in the relationship, and the relationship between ZTP and MNP was ongoing for six (6) years.

This was an application brought on by the Queensland Police Service on behalf of the aggrieved MNP. The Police made the application after investigating a complaint brought about by the couple’s neighbour. A temporary protection order was made, and this order turned into a final order following a hearing in the Holland Park Magistrates Court.

The aggrieved MNP did not support the police application, nor did she support the making of a temporary protection order. The police continued to run the application on behalf of the aggrieved. Which is a common protocol for Queensland Police now.

At the hearing, it was not disputed that the parties were in a relevant relationship; likewise, it was open on the evidence for the Magistrate to come to the view that the applicant, ZTP committed an act of domestic violence on November 2021. The primary issue was that the Magistrate had fallen into error in finding that it was necessary and desirable in all the circumstances that an order be made.

“Necessary and Desirable”

Section 37 of the Domestic and Family Violence Protection Act sets out when a Court can make a protection order. The third and final element in focus that section 37 talks about is:

Section 37

(1) (c) the protection order is necessary or desirable to protect the aggrieved from domestic violence.

(2) In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence—

(a) the court must consider—

(i) the principles mentioned in section 4 ; and

(ii) if an intervention order has previously been made against the respondent and the respondent has failed to comply with the order—the respondent’s failure to comply with the order; and

(iii) the respondent’s criminal history and domestic violence history filed in or given to the court under section 36A ; and

(b) if an intervention order has previously been made against the respondent and the respondent has complied with the order—the court may consider the respondent’s compliance with the order.

For a Court to properly determine whether it is necessary or desirable to make a final order, it must assess the risk of future domestic violence between the parties, in the absence of an order.

His Honour Judge Muir DCJ, in ZTP v BBY observed observations of His Honour Judge Morzone KC in the case of MDE v MLG [2015] as to how future risk is assessed. At paragraph 20 of the decision, His Honour noted:

1. First, the court must assess the risk of future domestic violence between the parties in the absence of any order. This means there must be a factual finding or inference drawn about the nature of and prospect that domestic violence may occur in the future. This will depend on the particular circumstances of the case. Relevant considerations may include evidence of past domestic violence and conduct, genuine remorse, rehabilitation, medical treatment, psychological counselling, compliance with any voluntary temporary orders, and changes of circumstances. Unlike its predecessor provision under the now superseded legislation, the court does not need to be satisfied that future domestic violence is ‘likely’. However, there must be more than a mere possibility or speculation about the prospect of domestic violence.
2. Second, the court must assess the need to protect the aggrieved from that domestic violence in the absence of any order. Relevant considerations may include the evidence for the party’s future, personal and familial relationships, their places of residence and work, the size of the community in which they reside, and the opportunities for direct and indirect contact and future communication, for example, in relation to children.
3. Third, the court must then consider when imposing a protection order it is necessary or desirable to protect the aggrieved from domestic violence.[3]

Decision

The original decision by the Magistrate to impose a two year domestic violence order was made on the basis of accepting the evidence at trial. The Magistrate acknowledged that there had been domestic violence that had occurred. However, the Magistrate did not provide a detailed reason as to why the making of an order would be necessary and desirable.

The appeals Judge acknowledged that in the incident on November 10, 2021, the Respondent had committed an act of domestic violence in that he caused emotional and psychological abuse to the aggrieved. However, His Honour did not believe that the Magistrate had properly articulated her reasons with regard to the evidence at trial.

His Honour’s observations at paragraphs [48]-[49] identified what the Court must consider in imposing a protection order.

“[48] The critical question in this appeal is whether the order is necessary or desirable.

[49] The focus on this element, namely whether the protection order is necessary or desirable to protect MNP from domestic violence, requires me to consider the paramount need for the protection of MNP. The discretion is a wide one and it follows from a plain reading of this section that the court must assess the risk of future domestic violence between the parties in the absence of any order”

In determining that the making of an order was not necessary or desirable, His Honour had regard to the following (para 52 to 56):-

Having considered all of the evidence I am not satisfied that a protection order is necessary or desirable to protect MNP from acts of domestic violence being perpetuated by the appellant for a number of reasons.

[53]Firstly, MNP’s evidence, which I accept, is that she is not in fear of the appellant and that she does not consider a protection order. Having considered all of the evidence, I am not satisfied that a protection order is necessary or desirable to protect MNP from acts of domestic violence being perpetuated by the appellant for a number of reasons necessary or desirable to protect her.

[54]Secondly, whilst there has been a past act of domestic violence – this occurred some 15 months ago, and it was a relatively isolated incident that did not involve physical violence against MNP and the emotional and psychological abuse must be seen in the context of their relationship at that time – one of six (6) years standing and one where they both clearly verbalised loudly their differences.

[55]Thirdly, there is evidence of genuine and immediate remorse and insight shown by the appellant into his conduct, reflected by the fact that he has taken immediate steps towards rehabilitation by engaging in counselling sessions with a psychologist to improve his communication with MNP, a person he remains in a relationship with. I am also satisfied that the appellant has found better ways to deal with the disorder with his jaw, which seemed to be at the root of a number of the arguments between MNP and him.

[56] Fourthly, the uncontested evidence is that even though the parties continue to co-habitat, there have been no incidents at the house since November 10, 2021.

The appeal Judge made the following orders:-

1. The appeal be allowed
2. The final protection order made on 26 July7 2022 is set aside
3. The temporary protection order made on 17 Nov 2022 is set aside.
4. The original application for a police protection order dated 10 November 2021 and filed in the Holland Park Magistrates Court in November 2021 is dismissed.

How can we assist you?

This decision provides great insight into what a Court must consider before making a final domestic violence protection order. Just because an application for a domestic violence order has been made, the final decision will need insight into more than one specific area.

The need to closely scrutinise Police and private applications for domestic violence orders is incredibly important.

If you have been charged with a domestic violence offence, or if you are approached by the Police for an application for a domestic violence order; it is crucial that you obtain independent legal advice before proceeding any further.

Our Criminal Law team practice extensively in Domestic and Family Violence Law and can assist you in obtaining a Domestic Violence Order, responding to an application for a Domestic Violence Order or Police Protection Notice, and representing you in relation to any criminal offence that may be DV related.

If you are experiencing domestic violence, being subject to coercive control, or have been accused of coercive and controlling behaviour, you can contact Connolly Suthers Lawyers to assist you.

If you need any further information or assistance, please contact:

DVCONNECT MENSLINE - 1800 600 636

DV CONNECT WOMENSLINE - 1800 811 811

Lifeline- 131 11 14

 

[1] Section 4, Domestic and Family Violence Protection Act 2012 – Principles for administering Act

[2] Ibid, section 8

[3] ZTP v BBY [2023] QDC 59