How Can the Law Protect You from Domestic Violence?

Date: May 02, 2010
Document Type: Newsletter

What is domestic violence

Domestic violence is commonly thought of as physical abuse. However, it can also include other conduct such as sexual, emotional or psychological abuse. The term "domestic violence" only applies to certain types of relationships. In particular, the individuals involved must be:

  • spouses or former spouses;
  • defacto or former defacto partners;
  • girlfriend and boyfriend or former girlfriend and boyfriend;
  • in a parent-child relationship; or
  • family members.

Who can get a violence restraining order?

If you are experiencing domestic violence, you can apply to the court for a violence restraining order. The application can be made by:

  • anyone over the age of 18;
  • a parent, guardian or child welfare officer on behalf of a child;
  • a police officer on behalf of any child or adult.

Children can apply for a violence restraining order where they are the direct victim of the act of violence. However, children may also apply for an order simply on the basis that they are likely to see or hear an act of abuse, or see physical injuries resulting from an act of abuse.

Where do you apply for a violence restraining order?

In most cases, an application for a violence restraining order can be made in person at the Magistrates Court. Sometimes an application can be made during other court proceedings, such as criminal cases If you are asking for an order against a child, the application should be brought in the Children's Court. However, you cannot get a violence restraining order against someone under 10 years of age.

How do you get a violence restraining order?

In order to obtain a violence restraining order, it is necessary to prove either that the person has already committed an act of abuse against you and is likely to do so again, or that the person is likely to act in a way that could make you fear they will commit an act of abuse. In domestic cases, the kind of behaviour that the court will consider includes:

  • acts of violence, assault or injury to the person;
  • property damage;
  • injury to pets;
  • kidnapping;
  • threats;
  • intimidating, offensive or emotionally abusive behaviour;
  • stalking.

What factors does the court consider before making a violence restraining order?

Before making a violence restraining order, the court is required to consider a number of factors. The main objectives for the court involve:

  • protecting people from violent behaviour;
  • preventing people from behaving in a way that makes others fear for their safety; and
  • protecting the welfare of children.

In addition, the court will also consider whether the respondent has a criminal record or a history of violence, where the people involved live, the impact the order would have on the respondent and the terms of any family court orders or other court matters.

How can a violence restraining order protect you?

The court can impose whatever measures it thinks are necessary to protect people from violent behaviour. This can include stopping someone from:

  • being near the place you live or work, or any other particular place;
  • coming within a certain distance of you;
  • contacting you in any way, including by telephone, in writing or by text message;
  • preventing you from using personal property regardless of who owns the item;
  • getting anyone else to do any of the things listed above; and
  • having or getting a gun or licence for a gun.

A violence restraining order does not come into effect immediately unless the respondent is in court at the time the order is made. Instead, the order comes into force at the time it is served on the respondent.

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