Criteria that must be met for a protection order to be made?
Pursuant to Section 37 of the Domestic and Family Violence Protection Act 2012 (“the Act”) a court may make a protection order if the court is satisfied that:
- A relevant relationship exists between the aggrieved and the respondent;
- The respondent has committed domestic violence against the aggrieved;
- The protection order is necessary or desirable to protect the aggrieved from domestic violence.
In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence, the court:
- Must consider the principles mentioned in section 4 of the Act; and
- May consider whether a voluntary intervention order has previously been made against the respondent and whether the respondent has complied with the order.
Principles for administering Act
The Act is to be administered under the principle that the safety, protection, and wellbeing of people who fear or experience domestic violence, including children, are paramount.
Further, the Act is to be administered under the following principles:
(a) people who fear or experience domestic violence, including children, should be treated with respect, and disruption to their lives should be minimized;
(b) to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act;
(c) perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;
(d) if people have characteristics that may make them particularly vulnerable to domestic violence, any response to domestic violence should take account of those characteristics. The Act gives examples of people who may be particularly vulnerable to domestic violence and includes:
- aboriginal people and Torres Strait Islanders;
- people from a culturally or linguistically diverse background;
- people with a disability;
- people who are lesbian, gay, bi-sexual, transgender, or intersex;
- elderly people.
(e) in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is most in need of protection should be identified.
(f) a civil response under this Act should operate in conjunction with, not instead of, the criminal law.
Criteria 1 – Relevant Relationship
Section 13 of the Act provides that a relevant relationship is:
- An intimate personal relationship; or
- A family relationship; or
- An informal care arrangement.
Criteria 2 – Committed an act of domestic violence
- The definition of domestic violence under the Act is broad. Section 8 of the Act provides that domestic violence means behavior that is:
- Physically or sexually abusive;
- Emotionally or psychologically abusive;
- Economically abusive;
- In any other way controls or dominates the other person and causes the other person to fear for their safety or wellbeing or that of someone else.
2. Domestic violence includes, but is not limited by, the following behavior:
- causing personal injury to a person or threatening to do so;
- coercing a person to engage in sexual activity or attempting to do so;
- damaging a person’s property or threatening to do so;
- depriving a person of the person’s liberty or threatening to do so;
- threatening a person with the death or injury of the person, a child of the person, or someone else;
- threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behavior is directed;
- 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 behavior is directed, so as to control, dominate or coerce the person;
- unauthorized surveillance of a person;
- unlawfully stalking a person.
3. A person who counsels or procures someone else to engage in behavior that, if engaged in by the person, would be domestic violence is taken to have committed domestic violence.
Criteria 3 – Necessary or desirable
The court must be satisfied that a protection order is necessary or desirable to protect the aggrieved from domestic violence.
The decision of Magistrate Costanzo in the case of Armour v FAC  QMC 22 provides a good examination of what is necessary or desirable to protect the aggrieved, pursuant to section 37(1)(c) of the Act.
Magistrate Costanzo looked to other legislation throughout Australia for guidance as to how the Act’s requirement of “necessary or desirable” should be interpreted. The Magistrate noted that:
- The test is stated in the alternative, so you only have to establish that the order is either necessary OR desirable and not both.
- It may be necessary or desirable if the behavior is likely to reoccur – that is, that there exists a real, significant likelihood that the acts of domestic violence would continue in the future.
- The court may find it necessary to make an order without finding it desirable to protect the aggrieved person. An example of this could be when a court finds it necessary to make an order contrary to the wishes of the aggrieved who is opposed to making an order.
- The need for protection must be a real one, not some mere speculation or fanciful conjecture.
- Need often arises from risk – that is, the court needs to assess the risk to the aggrieved and assess whether the management of the risk is called for. The risk of further domestic violence and the need for protection must actually exist.
- There is no need for the risk to be significant or substantial, just that a risk exists. The need for protection of an aggrieved must be sufficient, however, to make it necessary or desirable to make the order in all the circumstances.
- It may be necessary or desirable to make an order to protect an aggrieved person even if one of the grounds for finding that domestic violence has been committed by the respondent has ceased to exist.
- It could be decided that a risk of future domestic violence is because of ongoing contacts such as Family Court proceedings or other unresolved relationship issues.
- In some cases, it may be appropriate to make an order not only if the relevant risk is likely but also it is possible.
- A further fact to consider may be the gravity of the situation. Even if the court considers it could not say that it was necessary to make the orders sought, the gravity of the situation could strongly suggest that it is desirable that an order be made.
- The Act is aiming to hold the perpetrators of domestic violence accountable but also aims to ensure the respondent is given an opportunity to change their behavior.