Domestic Violence

Domestic Violence

A domestic violence order (DVO) is a civil order enforcing conditions about how a person can deal with another person. The order last for a period of no longer than 2 years.

A domestic violence order is not a criminal order and does not appear on your criminal history. If however you breach the DVO then you will have committed a criminal offence and then this may appear on your criminal history.

A standard DVO includes an order that a person is to be of good behaviour and not commit an act of domestic violence. However a DVO can also include many various orders including any of the following:

  • not to come within a certain distance from a person, their residence or their work;
  • Not to approach a person, their house or their work,
  • Not to contact a person
  • Not to contact a person except for the purposes of having contact with a child;
  • Not to contact or approach a named person on the order ( extra people you list for protection)

Domestic violence has always been thought of as physical assaults against women. This is not the case. Domestic violence can mean many things and can be committed against any person whether they are male or female. A person can obtain a Domestic violence Order (DVO) if 3 tests are passed:

  1. There is an intimate or family relationship between the accused and victim;
  2. An act of domestic violence occurred;
  3. The court considers it necessary and desirable for the Order to be made

This first step means that you cannot bring an application for a DVO against just anyone. There needs to be a relevant relationship between the parties. This can be in the form of a family relationship ie mother, child, uncle or aunt. It can also include people who are married or in a de facto relationship and now includes people who are dating. It doesn’t include friends or neighbours etc.

Domestic violence has a broad definition and is defined under the act as being one of the following:

  • A. Intimidation
  • B. Harassment
  • C. Wilful Injury
  • D. Wilful Damage
  • E. Economic Abuse
  • F. Indecent Behaviour
  • G. Threats of any of the above
  • H. Causing anyone else to commit one of the above acts.

This means comments or actions designed to intimidate or make a person feel threatened or oppressed. The court will consider whether the action is intimidating from the perspective of a reasonable person in the victim’s position.

Actions which have been determined to be domestic violence in the past are:

  • Swearing at someone or calling the person derogatory names (ie calling someone a bitch)
  • Stalking or following someone when it was unwanted.
  • Glaring at a person and running your finger along your throat.
  • Standover tactics or as outlined in the movie Fatal attraction- boiling a pet rabbit on the stove.

It can also include throwing or breaking something with force in a manner intended to instil fear in the other person.

The definition is broad and many people have unintentionally found themselves guilty of domestic violence without really understanding the far reaching nature of the act.

Harassment is the unwanted attention by one person to another. This can be abusive text messages, phone calls, stalking, turning up at a persons work, or even sending flowers. Someone can be found to have harassed a person by sending a smiley face text message repeatedly to a person after being told to stop.

Wilful injury is what many people think of when they think of domestic violence. This is when one person is physically assaulted by another. It does not mean that the person has to end up with bruises or physical injuries. It is an offence to simply lay your hands on someone against their will.

Spitting on someone, pulling someone’s hair or even trying to physically remove a baby from a person’s arms have been known as wilful injury.

It is not unusual for people in these situations to also have charges of assault laid against them. A very common issue arises when one person is attacked and the other person tries to restrained the attacker and then gets a DVO application served upon them. In these circumstances it is important to have the circumstances explained to the magistrate as a person is legally entitled to defend themselves.

If you ever find yourself in a situation where a person is trying to assault you the best course of action before anything is to try and call the police and remove yourself from the situation.

Wilful damage is the destruction of property regardless of whether it is yours or another person’s in order to intimidate that other person. It doesn’t include accidental damage during an argument ie. Falling over and breaking a chair and it doesn’t include the destruction of property done without the intention of intimidating a person ie. Knocking down a wall to renovate.

One of the most common scenarios of wilful damage that arise is when there is an argument and someone throws their own phone out of frustration and it smashes against the wall or someone slams or kicks a door open and breaks the door.

Economic Abuse is a relatively new adaption to Domestic Violence. The definition can be extremely broad but is mainly raised in circumstances when adult children are refusing to give their elderly parents access to their own funds or in circumstances when a person to a relationship has been cut off from financial support when they depend solely upon that income for support. This would occur usually when a defacto relationship or marriage breaks down and one person leaves and cancels access to the bank accounts leaving the other person destitute.

Indecent behaviour can include exposing yourself to someone, forcing yourself upon a person, or ejaculating or urinating in the presence of another person or leaving it in a place designed to be seen by the other person.

Indecent behaviour can also include sending naked photos of yourself to another person or even sending naked photos of another person to third persons.

Threats can be either a direct threat or a veiled or implied threat. It can come from you directly or come by other people on your behalf.

Examples of threats of domestic violence are:

  • ‘I will smack you in the face’
  • ‘You’re dead’
  • ‘I can’t help it if you come home and your car is damaged’

People tend to think that as long as they didn’t commit domestic violence themselves then they will not have a DVO made against them. This however is incorrect. If you directly or indirectly encourage another person to commit domestic violence then an order can be made against you.

The question of whether you caused the person to act out on your behalf or not will be a decision for a judge however hints that you wish someone would assault or threaten a person is enough for a judge to find that you caused that person to act out on your behalf.

Many people think that just by proving that domestic violence has occurred that it will mean that logically an order will be considered necessary and desirable. It does not.

This section of the act allow a magistrate sole discretion to determine whether an order should be made. There are absolutely no guidelines available and a magistrate can simply say no to the order.

If you brought an application for a DVO while you had, say, ongoing family court proceedings on foot, but those proceedings concluded prior to your hearing of the DVO then it is quite possible that the court may find that an order is not necessary because the accused and victim will no longer see each other again.

Alternatively if the domestic violence that occurred was a one off incident the magistrate may feel it would not likely occur again and not make the order.