One would think that in ordinary language this law was about keeping spouses, parents, children and relatives safe from physical or mental abuse from another family member. Sorry, you got it wrong!

The Domestic and Family Violence Protection Act 2012 likely applies to all relationships - by blood, by marriage or former marriage, de facto couples, same sex couples, being or previously being engaged, dating couples, parents of children, and even associates (people who work at or live at the same place as the aggrieved), and people who provide support or assistance to the aggrieved (friends and neighbours or non-commercial Carers).

If you are a victim of domestic or family abuse, first and foremost get in contact with a Lawyer who can advise and if necessary represent you. This law is not only about physical violence. It also covers emotional and financial “violence”. You may fear that something harmful may happen either to yourself, a member of your extended family, a friend, your property or even a pet.

If you are being unfairly accused of being abusive, it may be that there is another motive – perhaps to give the other party leverage to achieve some other goal, e.g. when children or property issues are yet to be resolved.

According to the Dictionary:-

  • “Domestic” means of the home, the family;
  • “Family” means the members of a home – usually parents and children or relations whether living together or not;
  • “Violence” means physical or mental strength applied with outrage from one to another;
  • “Protection” means to keep safe, defend.
  • “Coerce” means to persuade, pressurise, compel, even brainwash an unwilling person by use of force or threats”, i.e. to intimidate.
  • “Intimidate” means to influence the conduct of another by fear. Fear is an apprehension of harm whether physical or to property or to reputation, i.e. it is psychologically abusive.

Even Police can issue an on-the-spot Police Protection Notice under certain circumstances. Unless there is immediate compliance, there can also then be an on-the-spot arrest for breach of the same.

Under the Act, domestic violence is defined as being conduct or behaviour (including attempted or threatened) that is:-

  • physically, sexually, emotionally, psychologically, or economically abusive, or
  • threatening (including to suicide or self harm or damage property), coercive, controlling, dominating, or
  • stalking (including by surveillance) or
  • depriving liberty.

Thus it is a statutory violence if a person covered by this law attempts to have another (also covered by this law) do or not do something just by saying that otherwise something unpleasant may happen to that first person or the other or someone else or something else, even a pet.

Some “domestic” control is necessary but be warned, this law about abuse can itself be abused.

How many things in a failing relationship change! The list is endless. And in this modern age of unprecedented freedom from sexual inhibitions and the acceptability of certain language, a relationship between a couple (married, de facto, engaged or same sex) in good times can have no bounds. Talking dirty can be a turn on, even part of foreplay for a loving couple. But when the relationship changes, things can sour and the continuation of the previous "norm" can be claimed as a statutory violence. Even just threatening to talk dirty is domestic violence.

Take this example – one de facto spouse has no income and no property and the other supports the first in every way. They have not discussed the long term nor anything financial. They have not yet reached the stage of expectations about anything. The first spouse funds the purchase of a toothbrush that is provided for the other’s use. Cleaning teeth is not the other’s best thing and reminding about this causes great annoyance. That is nagging and under the Act perhaps this is emotionally abusive - "If you don't stop nagging about it, I will throw that bloody toothbrush out". Is this a veiled threat to damage property? Under the Act both are guilty of violence towards each other.

Even Police can issue an on-the-spot Police Protection Notice under certain circumstances.

To make an Order, the Court hears the allegations without restriction, maybe not even from the person complaining, the “aggrieved”. It then determines the facts based upon a balance of probabilities. Provocation is no defence. Pushing the other away after being struck is still domestic violence.

What is a balance of probabilities? Did (whatever) more likely happen than not! A balance is 50/50. More likely than not is 51%. And the Rules of Evidence do not apply to this Law. So a Court can listen to “evidence” by any means whatsoever. Hearsay and opinions etc are not excluded as in other cases. This may explain why about 95% of DV Applications succeed.

But there are also other ways of resolving these matters, for example by giving the Court an Undertaking not to commit domestic violence towards the other, or better still each party exchanging such Undertakings and hopefully the future is then uncomplicated. Solutions rather than arguing the graphic details in ugly Trials are the better ways to go.

Breach of an Order? The maximum penalty is 2 year in the "iron motel" for a first offence or 3 years if a second offence is within 5 years of an earlier offence.

This law has been with us since 1989 and prior to that the Family Law Act 1975 was frequently used to obtain Non-molestation and Sole Occupancy Orders.

Consult this legal firm with nearly half a century of knowledge and experience first and get it right!

Need help with the law?

If you need advice or representation in relation to a Domestic Violence matter whether as the Aggrieved or the Respondent or have an enquiry about any other legal matter, contact G. R. Brown Solicitor and Notary Public between 8.30am and 5.00pm Monday to Friday by visiting the office at Suite 5, Sandgate Arcade, cnr Brighton Road and Second Avenue, Sandgate, Qld 4017 or by telephoning on 07 3269 8511 or emailing grb@grbrown.com.au .

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