Domestic and family violence

31 Jul 2017 - 15:55 | Version 33 |


Contributed by AnnabelPengilley and KrisNorrington and current to 1 June 2017

'Domestic violence' includes where one person in a domestic relationship engages in conduct to establish and maintain control over the other person. Such conduct is not restricted to physical assaults. It can include:
  • sexual coercion
  • threats to assault or kill
  • damage to property or threats to damage property, including pets
  • intimidation, such as threats to have a person incarcerated or classified as mentally ill, or threats to reputation, for example, threats to disclose intimate photographs to a person's family, work or social network
  • verbal abuse and humiliation
  • forced isolation from work, family, friends, culture or religion
  • financial abuse, such as withholding or controlling money or not allowing a person to have access to food, clothes and personal items
  • harassment, including unwanted contact or a pattern of conduct that has the effect of unreasonably controlling a person or causing mental harm, and
  • stalking.
Criminal conduct between people in a domestic relationship that occurs in private incurs the same criminal sanctions as violence that occurs in public between strangers.

What can the law do?

The law can: A domestic violence order can be obtained, criminal charges laid and compensation ordered for the same incident.

The Domestic and Family Violence Act 2007 (NT) provides the framework for the making of domestic violence orders.

On 1 May 2016 Local Court reforms came into effect in accordance with the Local Court (Repeals and Related Amendments) Act 2016 (NT). The reforms saw the former Court of Summary Jurisdiction (CSJ), which previously dealt with proceedings under the Domestic and Family Violence Act 2007 (NT), replaced with the Local Court. Domestic and family violence proceedings now sit within the Civil Division of the Local Court.

Consequential amendments were made to the Domestic and Family Violence Act 2007 (NT) in response to the Local Court reforms. From 1 May 2016, the main changes were that the Court of Summary Jurisdiction became the Local Court, magistrates became judges and Court of Summary Jurisdiction Domestic Violence Orders became Local Court Domestic Violence Orders.

Other laws which have application to domestic violence orders and domestic violence more generally include the Police Administration Act 1978 (NT), the Family Law Act 1975 (Cth), the Local Court Act 2015 (NT), the Evidence
(National Uniform Legislation) Act 2013 (NT), the Criminal Code Act 1983 (NT), Victims of Crime Assistance Act 2006 (NT) and the Firearms Act 1997 (NT). The Criminal Code 1995 (Cth) is relevant particularly in relation to the use of a carriage service to menace, harass or cause offence, threat serious harm and threat to kill (see also Telecommunication and postal consumers).

The role of the police and the criminal justice system

A person threatened or subjected to violence should seek police assistance. The police can be contacted by telephoning 131 444 or 000 if urgent.

Both the Domestic and Family Violence Act 2007 (NT) and the Care and Protection of Children Act 2007 (NT) place mandatory duties on all Territorians, including solicitors, to report domestic violence and child abuse in certain situations. Failure to report as required by the law attracts criminal sanctions (see section Mandatory Reporting Obligations).

Police powers

The Criminal Code Act 1983 (NT) applies to all criminal offences committed in the NT. The types of offences committed in the home include assault, aggravated assault, sexual assault, attempted murder, manslaughter, breach of domestic violence order, threats to kill, trespass, criminal damage and stalking.

Criminal conduct committed in the home or in the context of a domestic relationship is a criminal offence. Once a complaint of violence in the home is received, police should investigate it in the same way as other serious complaints and alleged offences.

When police arrive at a domestic violence incident and find evidence that a crime has been committed, they may arrest and charge the perpetrator. Police can enter a house even if the perpetrator refuses to let them in. Police have the power to search and remove firearms. Police should not leave until they are satisfied that everyone at the scene is safe.

Police are also required to take any other appropriate action which may include making a Police s41 DVO which will be in force immediately (section 41 of the Domestic and Family Violence Act 2007 (NT)) or by applying through the Local Court for a DVO (see section 28 of the Domestic and Family Violence Act 2007 (NT)). The police do not have to charge the person with a criminal offence to make a DVO (see section Domestic Violence Orders).

Police also have the power to remove a perpetrator from the scene of the violence and keep them in custody for four hours while a DVO is obtained (section 84 of the Domestic and Family Violence Act 2007 (NT)). Police can take this action if they reasonably believe that there are grounds for making a DVO against the person and that there is an imminent risk of harm to the victim or their property (section 84 of the Domestic and Family Violence Act 2007 (NT)). A defendant can be detained for up to 10 hours where police believe the defendant is intoxicated, and that as a result they cannot properly give the defendant a copy of the DVO (section 84 of the Domestic and Family Violence Act 2007 (NT)).

As part of a Police s41 DVO, an order for the defendant to vacate premises where the defendant and protected persons have lived or been living together can be made (section 22 of the Domestic and Family Violence Act 2007 (NT)). The police can also take a victim to a hospital or other place to receive medical attention or to a safe place, such as a refuge or friend's or relative's place. The police can also take an offender, if not arrested, to a hostel or friend's house.

Bail

If a defendant is arrested and charged, the police may release them on bail. If the police do not release the defendant on bail, they will be taken before the court to allow the defendant the opportunity to make an application for bail. If bail is granted, the prosecutor should request bail to include conditions that provide for the alleged victim's safety. Such conditions might be that the defendant not approach the alleged victim or their house and not contact them in any way. The court's decision whether to grant bail or not depends entirely on the circumstances of each case, and the court may wish to hear from the alleged victim before making a decision. If the alleged victim does not want the defendant released on bail, they should tell the prosecutor who is handling the matter in court. If a defendant breaches any condition of bail, the police should be notified immediately.

Victims should be aware that where defendants are remanded in custody, they may be released on bail at any time and the victim will not necessarily be notified of this. Further, a defendant's bail conditions may be changed without notice to an alleged victim at any time. As such, if the victim has concerns for their safety, a DVO application may be appropriate.

Getting information from the police

The Northern Territory Charter for Victims of Crime states that police will, on request, provide a victim with information about the following matters:
  • Information about the charges laid against the defendant, or reasons why charges have not been laid
  • When and where the case is to come before the court
  • Whether bail has been granted and any bail conditions that relate to the victim, and
  • Information about the outcome of criminal proceedings and any sentence imposed.
To obtain this information, a victim should contact the police officer in charge of the investigation, generally the officer who originally took the details of the offence from the victim, the Department of Public Prosecutions or the Witness Assistance Service (see Contact points).

Where a defendant is jailed for violent or sexual offending relating to a victim, or where there is history of domestic violence by the defendant, a victim may apply for registration on the NT Victims Register to receive information about the defendant's parole applications, release date and related matters (see NT Victims Register).

Complaints about police

A person who is not satisfied with police conduct can make a complaint (see Complaints about police).

Mandatory Reporting Obligations

Mandatory reporting of domestic violence

Practitioners and all adults in the Northern Territory must report abuse that occurs in a domestic relationship, and:
  • Has caused harm, that is 'physical harm that is serious harm', or
  • Where there is a threat to the life or safety of a person (section 124A(1)(a) of the Domestic and Family Violence Act 2007 (NT)).
Note that 'physical harm' is defined in reference to s1A of the Criminal Code Act 1983 (NT) and 'serious harm' is defined in s1 of the Criminal Code Act 1983 (NT).

Section 124A(1) creates an offence under the Domestic and Family Violence Act 2007 (NT) for an omission to report abuse 'as soon as practicable after forming the belief' (s124A(1)(b)). Once a belief is formed that either of the circumstances above exists, you must call Police on 000 for emergencies or 131 444 where an emergency response is not needed.

When acting in good faith, you are not civilly or criminally liable or in breach of any professional code of conduct for making a report, or for disclosing any information in the report (s 125(1)).

Section 124A(3) provides a 'reasonable excuse' defence to an omission to report under s124A(1). The legislation specifies three (3) circumstances that would satisfy the reasonable excuse defence:
  • The person has a reasonable belief that someone else has already reported the same belief about the circumstances (s124A(4)(a))
  • The person is engaged in planning for the removal of the victim and an intention to report belief as soon as practicable after the removal (s124A(4)(b)), or
  • In relation to physical harm that is serious harm (the circumstance in s124A(1)(a)(i) above), the person has a reasonable belief that a serious or imminent threat to the life or safety of any person may result if the matter is reported (s124A(3)(c)).
In the event the circumstances that provide for a reasonable excuse cease to exist, the person must then still report under s124A(1) of the Domestic and Family Violence Act 2007 (NT).

Mandatory reporting of child abuse

The Care and Protection of Children Act 2007 (NT) provides further mandatory reporting requirements in the Northern Territory in relation to the safety of children. Section 26 requires that where a person believes on reasonable grounds that a child has been or is likely to suffer harm or exploitation or has been or is likely to be the victim of a sexual offence, the person must report that belief to a police officer or the CEO of Territory Families.

See section 'Mandatory reporting and investigation of notifications of harm/risk of harm or exploitation of a child' .

Domestic Violence Orders

Introduction

A domestic violence order (DVO) is an order made by the Local Court under the Domestic and Family Violence Act 2007 (NT) which restricts the behaviour of one person towards another. A DVO can be enforced by the police.

The person applying for the DVO is referred to as the applicant. The person who will be protected by the DVO is referred to as the protected person. The person whose behaviour the applicant is seeking to restrain is referred to as the defendant.

Key features of a DVO

  • A DVO is a civil order of the court that restrains a perpetrator (the defendant) from committing future domestic violence against the victim/s (protected person/s)
  • A DVO is not a criminal sanction, is not included on a person's criminal record and is not intended to punish the defendant
  • A defendant may 'consent without admissions to liability' to the making of DVO. A DVO consented to without admissions to liability would not affect the civil or criminal liability of the defendant in respect of conduct to which the DVO relates (Domestic and Family Violence Act 2007 (NT) s87)
  • A NT DVO only restrains the defendant's behaviour when they are in the NT. A NT DVO can be registered and therefore be made enforceable in the other States and Territories, and in certain circumstances in New Zealand, without notice to the defendant (Domestic and Family Violence Act 2007 (NT) s89).

Breaching a DVO

It is a criminal offence not to comply with terms of a DVO. All breaches should be reported to the police, even if the defendant did not hurt the applicant in any way. Breach of a DVO is an offence of strict liability (Domestic and Family Violence Act 2007 (NT) s120).

If found guilty of breaching a DVO, a first offence is punishable by a fine of up to 400 penalty units (on 1 May 2016, $61,200) or a term of imprisonment of up to two years (Domestic and Family Violence Act 2007 (NT)s121(1)). Other penalties, such as a good behaviour bond or community service orders, are possible. A defendant convicted of a second offence where the breach results in harm to the protected person must be sent to prison for not less than seven days and no more than two years (Domestic and Family Violence Act 2007 (NT)s121(2)).

DVOs and firearms

The Firearms Act 1997 (NT) provides that a defendant's firearms licence automatically suspends when an interim DVO is made (s39(1)). A person must surrender their licence and deliver any firearms with respect of that licence to Police (s39(2)). The suspension of the firearms licence will end when the interim DVO is revoked.

A defendant's firearms licence is revoked when a final domestic violence order is made (s40(1)). The Firearms Act provides that a gun licence must not be granted to a person who has a final DVO in force against them or has had a DVO in force against them within 5 years of making an application for a DVO (s10(3)(g)). That is, a person cannot be granted a firearms licence until 5 years have passed since the final DVO expired.

Defendants whose employment requires them to handle firearms, such as police officers or defence personnel, should obtain individual advice about any impact of suspension or revocation of their firearms licence, or their access to firearms, in a work capacity.

DVOs and NT Working with Children Clearance (OCHRE Card)

The making of a DVO against a person will not of itself impact the person's ability to apply for or retain a NT Working with Children Clearance. As a DVO is a civil order, no DVOs will be disclosed on a criminal history check.

However, any conviction for breach of a DVO would be disclosed on a criminal history check. The Care and Protection of Children Act 2007 (NT) regulates the approval of applications for a Working with Children Card. If a person has been convicted or has a criminal history of a prescribed criminal offence, a Working with Children Clearance will not be approved (s189(1)). Schedule 3 of the Care and Protection of Children (Screening) Regulations 2010 (NT) prescribes the relevant disqualifying criminal offences. Broadly, the most significant criminal offences for the Working with Children Clearance include sexual, violent and drug-related offences involving children.

The offence of engaging in conduct in contravention of a DVO is not a disqualifying offence at Schedule 3 and therefore should not of itself impact on an existing or future NT Working with Children Clearance.

What orders can a DVO include?

A DVO can include different kinds of orders depending on the circumstances and protection needs of the parties.

'Non-contact orders' can restrain the defendant from any direct or indirect contact with the protected person/s, or provide exceptions for contact only for the purpose of making arrangements for the children or property of the parties, with such contact being direct or only via certain third parties or in accordance with a parenting plan or family law order. Such orders can also restrain the defendant from remaining at any place where the protected person/s are living, working or visiting.

'Non-intoxication orders' can restrain the defendant from contact with the protected person/s while intoxicated or under the influence of drugs, and provide that the defendant must submit to a breath analysis or other tests by Police.

'Non-violence'; or 'non-harm' orders restrain the defendant from harassing, threatening, verbally abusing or assaulting the protected person, damaging or threatening to damage their property or exposing the children of the parties to domestic violence (s21 Domestic and Family Violence Act 2007 (NT)).

Both non-violence and non-intoxication orders allow the protected person and defendant to communicate, to remain in a relationship and/or live together if they wish.

A DVO can include orders that the defendant is restrained from stalking the protected person.

The court can make an order requiring the defendant to attend counselling or rehabilitation. This kind of order can only be made with the consent of the defendant and only if the defendant is a suitable person to take part in such a program and there is a suitable place available (s24 Domestic and Family Violence Act 2007 (NT)).

A DVO can also include an order requiring the return of personal property of the defendant or protected person (s21(c) Domestic and Family Violence Act 2007 (NT)).

The court may make any other orders that the court considers are just and desirable in the circumstances (s21 Domestic and Family Violence Act 2007 (NT)).

There are standard orders contained in the Local Court DVO application form and in the Police section 41 form.

DVOs and living arrangements

The court can make a 'access order' that restrains the defendant from entering the protected person's home or an order that the defendant vacates the premises where they live or have previously lived with the protected person [DFVA ss 4, 22].

Where the parties normally live in the same house with a child and an order is made that stops or limits a defendant's contact with the protected person or a child, the court must presume the protection of the protected person and child are best achieved by them living in the home [DFVA s 20] (that is, the defendant moves out of the family home).

An order to vacate or not to enter a home can be made even if the defendant owns all or part of the home or if the property is rented in the defendant's name, protected person's name or in joint names [DFVA s 22].

Where a premises access order has been made, the law allows the defendant to enter the home in the company of a police officer to collect their personal property. Personal property includes clothes, tools of trade, personal documents or other items of personal effect [DFVA s 85].

In relation to a tenancy, the court can make a replacement agreement to remove or replace the defendant or protected person's name on the tenancy agreement, or an order to terminate a tenancy agreement. In making such orders, the court must be satisfied that:
  • The relationship between the parties has broken down permanently
  • The parties can no longer live in the same house free from domestic violence
  • If one party remains in the tenancy, that they are able to maintain the rent payments and other responsibilities under the replacement tenancy agreement
  • The landlord consents or the court is satisfied that landlord's refusal to consent to the tenancy termination or replacement is unreasonable, and
  • The protected person consents to any orders made in relation to the tenancy [DFVA s 23(3)].
Where a protected person no longer wishes to live in the premises, a tenancy replacement agreement or termination can be made even if the DVO does not include a premises access order [DFVA s 23(2)].

DVOs and children

If the police are called to a domestic violence incident and there are children present, the police must take action to protect the children. This means that the police will need to: ;
  • Check if there is already a DVO in place that covers the children
  • Consider making an application for a DVO on behalf of the children, and
  • Contact Territory Families (DCF) so that they can investigate.
The DFVA provides for orders to protect children from being exposed to or subjected to domestic violence. The most common form of order in relation to children is an order that the defendant is restrained from exposing the children of the parties to domestic violence. Other orders may include restraints on access to children and provide for supervised access.

Concerns about neglect of a child, such as exposing a child to illicit drug use, drink driving with a child in the vehicle, failing to properly clothe and feed a child, failing to provide proper supervision of a child, or the impact of the other parent's mental health or substance abuse on their ability to care and supervise children will not of themselves be a basis for a DVO and can be addressed through Family Law mediation or court proceedings and/or through the Territory Families. See Parenting after separation for information about the family law process.

Concerns that the other parent will take the child against the person's wishes will not of themselves be a basis for a DVO and can be dealt with through family law mediation or court proceedings. See Parenting after separation.

Where domestic violence in relation to children is an additional factor in the above circumstances, a DVO may be sought as well as family law mediation or court proceedings or Territory Families intervention.

Where there is an existing DVO and a later Family Law order or injunction is made providing for the defendant to spend time with a child, and the family law order or injunction is inconsistent with the DVO, the DVO will be invalid to the extent of the inconsistency. The DVO will remain valid only in respect of any other provisions that are consistent with the Family Law order or injunction [FLA s 68Q(1)].

The Local Court can make, revive, vary, discharge or suspend that parenting order [FLA s 68R]. The Local Court can only exercise this power if it is making or varying a final DVO. Where the Local Court makes an interim DVO, it has the power to revive, vary or suspend a parenting order until the next Local Court mention date or for a period of 21 days, whichever is the earlier [FLA s 68T].

What is an undertaking?

An undertaking is usually made in the form of written document signed by the defendant in the same conditions as the DVO, or other conditions as agreed between the parties. An undertaking is also referred to as a promise to the court.

In any proceeding for a DVO a party may propose that the matter resolve by way of an undertaking, rather than by the making, confirmation or continuation of a DVO.

While all the parties to a DVO proceeding may agree to an undertaking, as the undertaking is made to the court, the court has the final say on whether or not to accept the undertaking.

Breach of an undertaking may constitute contempt of court, which is punishable by jail and/or fine. Prosecution for contempt of court is rare but can be serious. More usually, if the defendant breaches the DVO by committing new acts of domestic violence against the protected person, it is likely a new application for a DVO will be made against them. It may be difficult to defend such an application where there has been domestic violence committed in breach of an undertaking to the court.

Any breach of undertaking that constitutes a criminal offence can be dealt with by police in the normal way, that is through investigation, arrest and criminal charges.

Who can apply for a DVO?

An application for a DVO can made against a person aged 15 years or older. An application may have a number of protected persons, but there can only be one defendant in an application for a DVO.

Any of the following people can apply to the court for a domestic violence order:
  • An adult or young person (15 -17 years) who is in a domestic relationship with the defendant [DFVA s 28]
  • An adult acting on behalf of another adult or child who is in a domestic relationship with the defendant [DFVA s 28]
  • A police officer [DFVA s 28], and
  • In relation to a child, a police officer or child protection officer [DFVA s 29].
The term 'domestic relationship' is defined at Subdivision 2 of the DFVA. A person is considered to be in a domestic relationship with another person if:
  • The person is or has been in a 'family relationship' with the other person, including a spouse or de facto partner, relative such as a child, stepchild, cousin, grandparent or in-law, or if the person is a relative of the other person according to Aboriginal tradition or contemporary social practice
  • The person has had custody, guardianship or right of access to the other person
  • A person is or has been subject to the custody, guardianship or right of access by the other person
  • The person usually or regularly lives with, or has lived with the other person. This includes housemates and former housemates
  • The person is in a family relationship with another person with whom the applicant/protected person lives with or has previously lived with
  • The person is or has been in an intimate personal relationship with the other person. This includes people who have been dating or engaged to each other, and does not require a sexual relationship
  • The person is or has been in a family relationship with a child of the other person, or
  • The person is or has been in a paid or unpaid carer's relationship with the other person, whether they have lived together or not.

When will the court make a DVO?

On the hearing of an application for a DVO or confirmation of a DVO, the Court must be satisfied that:
  • There is a domestic relationship between the protected person and the defendant; and
  • There are reasonable grounds for the protected person to fear the commission of domestic violence.
Domestic violence includes the following conduct [DFVA s 5]:
  • Conduct causing harm. Harm is defined in reference to s 1A of the CCA, and includes harm that is physical harm or harm to a person's mental health, whether temporary or permanent [DFVA s 4]
  • Damaging or threatening property, including causing the death or injury of an animal
  • Intimidation. Note that consideration may be given to a pattern of behaviour that has the effect of unreasonably controlling the person or causing harm including mental harm [DFVA s 6]
  • Harassment. This may include unwanted contact, such as phone calls or visits
  • Stalking a person, which includes on 2 or more occasions attending where a person normally lives, works or visits with the intention of harming the person or causing them to fear harm [DFVA s 7], and
  • Economic abuse [DFVA s 8].
When deciding whether or not to make a DVO, a court (or for a s 41 DVO, the police) must consider the safety and protection of the protected person to be of paramount importance [DFVA s 19(1)]. In addition, the legislation requires that the court or police must consider the following:
  • Any family law orders in force, or pending applications for family law orders in relation to the defendant
  • The accommodation needs of the protected person
  • The defendant's criminal record
  • The defendant's previous conduct in relation to the protected person or any other person, and
  • Any other matters that the court, or police, considers relevant [DFVA s 19].
In order to make a DVO, the court must be satisfied on the balance of probabilities that there are reasonable grounds for the protected persons to fear that the defendant will commit domestic violence against them [DFVA s 18].

In determining whether to make a DVO, the court applies an objective test, which means a DVO may be made even if a protected person denies or does not give evidence in the proceeding [DFVA s 18]. This objective test also means that the protected person's feelings of fear will not of themselves be sufficient to satisfy the court that an order should be made. The court will look objectively at the evidence before it to determine whether or not it can be satisfied to make a DVO.

Both protected persons and defendants may mistakenly believe that if it can be shown there has not been any physical domestic violence, the court will not make a DVO. This is not so. If there is sufficient evidence of other forms of domestic violence and if the court is satisfied that there are reasonable grounds for the protected person to fear the commission of the domestic violence in the future, the court will make the DVO.

Types of Domestic Violence Orders

There are four ways a DVO can be put in place in the NT:
  • External jurisdiction orders registered in the NT [DFVA ss 93-94]
  • Criminal Court DVO [DFVA s 45]
  • Police Domestic Violence Orders [DVFA s 41], and
  • Local Court DVOs - Court application for DVO [DFVA s 28].

External jurisdiction orders registered in the NT

A restraining order similar to a DVO that has been made interstate can be registered in the NT. A protected person on the interstate order, an adult acting on behalf of protected person on the interstate order or a police officer acting on behalf of a protected person can apply to register an interstate order in the NT [DFVA s 93]. Once an order is registered it has the same effect as an order made in the NT.

The applicant should take the interstate order and evidence that the order has been given to the defendant (such as the declaration of service) to any Local Court and file it at the court registry. An applicant who does not have proof of service may usually obtain it by contacting the court that made the order.

Once an applicant has the necessary documents from interstate, registration is usually a quick and easy process that does not need to go before a judge.

The defendant will not be told that the order has been registered in the NT unless the protected person/applicant gives consent for this to occur [DFVA s 95].

An order that has not been formally registered in the NT may still be enforceable under certain conditions. If a police officer is satisfied on reasonable grounds that an interstate DVO exists, they can make a declaration to that effect. The declaration will remain in effect for 72 hours. The interstate order then has the same effect as an order made in the NT [DFVA ss 101-102].

Once an external order has been registered in the NT, the protected person, a police officer or adult acting on behalf of a protected person or the defendant may apply to the court to vary or revoke an interstate order [DVFA s 98]. See section ' Application to vary/revoke a Court DVO'.

Criminal Court DVO: s 45 DFVA

The Local Court (Criminal Division) has its own power to make a DVO where the defendant is found to have committed a domestic violence or related criminal offence, and where the court is satisfied a Local Court DVO could be made against the person [DFVA s 45(1)]. The court may make a DVO, or vary an existing DVO, by changing its terms or by making it run for a longer or shorter period. The court can make or vary a DVO even if the defendant objects, without the need for the matter to go to a contested hearing.

A criminal court DVO can be made or varied on the court's own initiative or on application by a prosecutor. The protected person does not have a direct role in asking the court to make a DVO in this situation. Where a victim would like a DVO made, varied or extended at the conclusion of a criminal proceeding, they or their representative may liaise with the prosecutor and inform them of their wishes, confirm this writing to the court, and/or include their wishes in either their initial Victim Impact Statement or in an updated Victim Impact Statement.

Urgent Police Domestic Violence Orders (s 41 DVFA)

The law gives Police the power to make a DVO on the spot where it is necessary to ensure a person's safety because of urgent circumstances or because it is not otherwise practicable in the circumstances to obtain a Local Court DVO, and a Local Court DVO might reasonably have been made had it been practicable to apply for one [DFVA s 41]. A police s 41 DVO is in place on a temporary basis until made final (with or without variations) or revoked.

Police have the power to:
  • Make a DVO even if the defendant has not had the opportunity to answer any allegations [DFVA s 41(2)], and
  • Make a DVO even if either the protected person and/or the defendant say they do not want a DVO.
The defendant and the protected person should each be given documents showing what orders have been made and the date the defendant is summonsed to attend court to show cause why the order should not be confirmed [DFVA s 43].

In a court proceeding to confirm or revoke a Police s 41 DVO, the protected person, the defendant and the police are all separate parties with the right to be heard in the proceedings (DFVA ss 4, 81]. Both defendants and protected persons may self-represent in court or have legal representation.

Police s 41 DVOs are usually made in urgent situations and there may be limited time to consider what will be the most appropriate form of DVO. Sometimes the conditions of a DVO may not be appropriate for the circumstances, either being too restrictive or having insufficient protections, or there may be a need to add orders, for example, in relation to a tenancy agreement.

If either a protected person or defendant is unsure about the proceedings or wants a different outcome than police are seeking, they may obtain legal advice and seek their own legal representation before the matter first goes before the court or on the day if there is a suitable duty service available (See Domestic violence services). If there is insufficient time to obtain legal advice, then the matter may be adjourned to allow parties to receive legal advice.

If neither the defendant or protected person attends court, the court may confirm the DVO in their absence. The confirmed order becomes a final Local Court DVO.

Options when a Police DVO comes before the court

When a Police DVO first comes before the court, possible outcomes are:
  • Confirmation of DVO: In the absence of the defendant and there being no appearance or no objection by the protected person, the court may confirm the DVO, with or without variations. In a small number of cases, the Police may ask for the DVO to be revoked, or the judge may refuse to confirm the DVO due to lack of evidence.
  • Consent without admissions: The defendant may attend court and consent without admissions to the DVO being confirmed, either in the terms of the Police s 41 DVO or as negotiated on the day.
  • Adjournment to a future date: The defendant and/or the protected person may attend and seek an adjournment for legal advice or negotiations. In some cases a longer adjournment may be sought, for example, to allow the defendant to engage in rehabilitation, a family violence program or to obtain mental health treatment.
  • Variation of Police s 41 DVO during adjournment: The DVO will stay in place during any adjournment. If all the parties and the court are in agreement, a variation may be made to the terms of the DVO for the adjournment period.
  • Offer of undertaking: The defendant offers an undertaking, but this cannot be accepted if the police or protected person objects or the court is not satisfied to revoke the DVO despite the parties being in agreement (see What is an undertaking?)
  • List for contest hearing: The defendant and/or the protected person object to the confirmation of the order and contest the matter, in which case the court will list the matter for a contested hearing (see Contested hearing).

Changing a Police s 41 DVO before the next court date

If a party objects to a Police s 41 DVO being in place, or needs to change or revoke it before the next court date, an application can be made to have it varied or revoked. A party may wish to make such an application where there has been no agreement to vary in court, or where a party is unable to wait to the next scheduled court date to ask for a variation.

Where a party wants to change a Police DVO that has not been finalised, there are three (3) main options:
  • Application to relist
  • Urgent review of a Police DVO by a police officer, and
  • Review via a police officer.
Note that a different process applies to varying a current Police s 41 DVO to varying a final Court DVO. There is a common misunderstanding that where a party wants to change a Police s 41 DVO, that they should lodge an 'Application to Vary / Revoke'. However at law, this procedure only relates to Local Court DVOs, not Police s 41 DVOs [DFVA s 47]. In practice, the court tends to accept these applications, however it is recommended that the correct procedure be followed to avoid an application that does not have a proper legal basis being rejected by the registry or the court, or is successfully challenged by another party to the proceedings.
Application to relist

If the parties live in or near Darwin, Alice Springs, Katherine or Tennant Creek, the defendant or protected person can attend the Local Court registry and complete an 'Application to Relist' form, attaching an affidavit and relevant evidence in support of the application.

The person seeking the application to relist will be responsible for informing the other parties about the new court date if it is approved. Where the DVO is full non-contact, a defendant will not be able to inform the protected person themselves. It will therefore be necessary for registry, police or lawyers for police to inform the protected person of the new court date.
Urgent Variation of a Police DVO by a Police Officer [DFVA Pt 2.8]

Note: this part also applies to final Local Court DVO.

A police officer may apply to a judge for an order varying a Police s 41 DVO (or Court DVO) if, because of urgent circumstances, the terms of the DVO should be varied before the hearing for the DVO [DFVA s 65(1A)]. The police officer can only make the application if satisfied there has been a substantial change in circumstances since the DVO was made, such as a change in care arrangements or that the defendant has satisfactorily completed a rehabilitation program [DFVA s 65 (2),(3)].

It is generally understood that this power is to be used where the parties live in remote communities where access to regular court sittings is limited, however, there is nothing in the legislation that imposes such a limitation. Defendants or protected persons seeking such a review should contact their local police and explain their situation.

The court may determine the application even if the defendant or another person with an interest in the outcome has not had an opportunity to be heard [DFVA s 67(3)]. The court has the power to refuse the application, confirm the DVO, or vary the DVO [DVFA s 67(2)]. There is no requirement for the police officer to inform the parties if the court refuses to make an order to vary the DVO. The police officer must inform the parties of the judge's decision to vary the DVO [DVFA s 70]. A copy of the varied order given to the defendant is taken to be a summons to show cause why the DVO should not be confirmed [DFVA s 71].

If the police officer is not satisfied that there has been a substantial change in circumstances and does not make an application for a variation, the defendant or protected persons will need to wait for the next listed court date or make an application to relist (see above).
Review via a Police Officer [DFVA Pt 2.9]

This review differs from the urgent police variation (above), as the police officer will undertake a review, rather than make an application to a judge for a variation by a party. If a party requests a Pt 2.8 review by a police officer there is a duty on the police officer to facilitate the application [DFVA s 73]. In this form of review, there is also no formal requirement of substantial change for an application to be made. In practice however, a party making the application will need to provide the court with good reasons why the DVO should be changed before the next listed court date and why the current orders are not appropriate.

Once a party tells the police officer they want to apply for a review, the police officer must contact a judge and ensure that the judge is given the information required for the application [DVFA s 73]. The judge has the power to confirm the Police s 41 DVO, with or without variations, or revoke the DVO [DFVA s 74(2)].

If the judge revokes the DVO, the police officer must inform the parties of the order revoking the DVO and the reasons for that decision [DFVA s 75]. If the judge confirms the DVO with or without variations, the police officer must give details of the varied order to the parties and to the court [DFVA ss 76 and 78]. If the police DVO is confirmed (with or without variation) the parties will be informed of the date on which the defendant is summonsed to show cause why the order as varied should not be confirmed [DFVA s 79].

Court application for DVO (Local Court DVO)

An application for a Part 2.4 DVO is made by a member of the public for the protection of themselves and/or another person or child who is in a domestic relationship with the defendant. The court does not charge any fees in relation to a private DVO application.

A police officer or a child protection officer must make an application for a child if the officer reasonably believes domestic violence has been committed or is likely to be committed and the child's wellbeing has or is likely to be adversely affected by the violence [DFVA s 29]. However a number of exceptions to this requirement apply, including if a DVO is already in place, or if a police DVO or a Local Court DVO application is to be made, or if there is another order, such as an order under the Care and Protection of Children Act, already in place to protect the child [DFVA s 29].

Individual legal advice should be sought before making an application for a DVO. Advice can be given on whether making a DVO application is the most effective and safest option in circumstances, on alternatives to making a court application (for example, sending a formal warning letter to the defendant or taking practical measures to deal with the domestic violence), on the appropriate terms of the DVO sought and issues in relation to the effect of a DVO on any living and child contact arrangements of the parties.

Unlike a Police s 41 DVO which is in place immediately upon the defendant being given a copy of the Police DVO, either orally or in writing (see Urgent Police Domestic Violence Orders ), a Court DVO application matter must go before the court. If the court makes a DVO, it is only enforceable against the defendant if they are present at court when the DVO is made, or a later time when the DVO is given to them by an officer of the court or police officer, or served on them in another way provided by the law [DFVA s 119].

Before filing a DVO application, the applicant or their lawyer should be aware that the DVO application in some cases may require a number of court attendances. For example, if the defendant has not been served, if the defendant wishes to adjourn to seek legal advice, or if the matter is listed for a contested hearing. Failure to appear at a mention or hearing may lead to the DVO application being dismissed and any interim orders being revoked (cancelled).

Safety considerations before an application is filed and whether there is a need for urgent order

Applicants must be aware of the following points before filing an application:
  • There is no DVO in place until the matter goes before the court and the judge makes an order for a DVO to be made
  • A Local Court DVO is not enforceable against the defendant unless they were present in court when it was made or once it has been served on them
  • Unless the matter is urgent, the court requires applicants to allow sufficient time for service before first mention of the application (usually a minimum of three working days), and
  • A court officer or a police officer will endeavour to personally serve the defendant (at their home, workplace or other known location) with a copy of the application before the first court date.
As such, the applicant or protected person's address or other contact details should not be included on the application if these are not already known to the defendant.

Careful consideration should be given to whether the defendant's reaction to being served with the application may put the safety of the applicant or protected persons at risk, particularly where the applicant and defendant still live in the same house, or where children are living or staying with the defendant at the time the application is filed.

It may be appropriate for applicants and protected persons to stay in a safe location or refuge until such time as the court determines the application and the DVO is served on the defendant.

Where there are extremely serious concerns for safety on the filing of an application, police may be consulted about whether an urgent Police s 41 DVO is necessary to ensure the person's safety [DFVA s 41].

If Police are unable to assist by making a s 41 DVO, the applicant may seek an urgent Local Court DVO, with filing and first mention to occur on the same day. See Urgent and Interim DVOs below on filing and seeking an urgent ex-parte order before the defendant has an opportunity to attend court and be heard [DFVA s 32].

Preparing an application for a DVO

Defendant's details

The court will not accept an application for a DVO if there are no address or contact details for the defendant. If the applicant does not know the defendant's home address, a work address may be used or the address of a location the defendant regularly attends. If the defendant's address is known to police, the court may make an order requesting that police serve the application.

The 'service information form' should be completed with as much detail as possible on the defendant's appearance, places where they may be located, and a description of any vehicles used by the defendant to help the court officer or police locate, identify and serve the defendant. A photograph of the defendant may be attached to the form or a map be attached where an address, for example in a rural area, may be hard to locate.

An application may be made against a defendant who is interstate. To give such an application to the defendant, the court registry will make arrangements with the relevant interstate police for service of the application.
Deciding on who should be the protected persons and the type of DVO sought

In preparing a DVO application, careful consideration should be given to who should be listed as a protected person on the DVO and what orders should be sought.

The applicant for a DVO is not necessarily a protected person. If the applicant needs the protection of the DVO they need to put their name in the section 'Details of persons to be protected' on the DVO application form.

The applicant should provide evidence as to why each order is needed and why it is needed in respect of each protected person, for example:
  • An order restraining the defendant from damaging or threatening to damage property needs to be supported by a history of such behaviour by the defendant
  • An order restraining the defendant from consuming drugs or alcohol will require evidence that the defendant has committed domestic violence as a result of the consumption of illicit drugs or alcohol, and
  • An order restraining the defendant from exposing children to domestic violence will require evidence that the children have been or are likely to be exposed to domestic violence [DVFA ss 13, 18].

Preparing the affidavit in support of a DVO application

At first mention of an application for a DVO, the court prefers the evidence in support set out in an affidavit as this saves time in court. Providing evidence in affidavit form also protects the applicant from the stress and difficulty of giving oral evidence in the court room. However, in some instances, the judge may ask or permit the applicant or protected person to give evidence from the witness box.

The affidavit should provide a concise factual summary of the domestic violence that has occurred and the reasons why a DVO is needed. The court requires particulars (specifics) of the domestic violence that has occurred, not vague general statements, to be satisfied that a DVO is required.

Drafting an affidavit in support of a DVO application:

The information below is a general guide only and is not intended to be prescriptive, nor to limit the information an applicant may seek to include.
  • Do not include the applicant's address if this could put the applicant at risk
  • Provide details of the domestic relationship, when it began, and date of separation or current status (eg separated under one roof)
  • Provide details of any children of the relationship (including names and dates of birth) and the recent and/or current living and handover arrangements
  • Provide details of any Parenting or Family Law Orders, or current or pending Family Law proceedings. This information is required under DVFA s 90
  • Give a brief overview of past and current domestic violence
  • Date (or best recollection of date) and details of the most serious past domestic violence incident/s
  • Date and details of the most recent domestic violence incidents, including reference to whether children were present
  • Annex printouts of text messages, facebook posts, emails etc that are evidence of domestic violence
  • State if an incident was reported to police, and where available attach a copy of any police statements
  • Detail any injuries, and where available attach a copy of available medical records
  • Give relevant information on the defendant's previous conduct in relation to others
  • If seeking a tenancy termination or tenancy replacement agreement, address the factors at DFVA s 23(3)
  • Describe any harm that has or may occur as a result of the domestic violence, for example, mental harm, and
  • Detail any need for future protection.

Urgent and interim Court DVOs

Ex parte DVOs

In urgent circumstances, the court may make an urgent DVO in the defendant's absence and without the defendant being served, (ex parte) [DFVA s 32]. The court also has the power to proceed ex parte in an application to vary an existing DVO [DFVA ss 55-59].

An application may be filed and go before a judge on the same day, however sufficient evidence will be required to satisfy the court of the necessity of taking this extraordinary step. In addition, any necessary arrangements for the safety of protected persons must be considered in the event of an ex parte DVO not being granted, or to ensure their safety until such time as the defendant is served with the DVO.

When a DVO application comes before the court in the usual way, but the defendant has not been served, the court may proceed ex parte if satisfied that the particular circumstances are sufficiently urgent and serious to warrant an ex parte DVO.

Where a DVO is made ex parte, the court will order the defendant to attend court on a specified date to show cause why the DVO should not be confirmed [DFVA ss 37, 59]. The defendant should also be served with a copy of the ex parte DVO, a copy of the application for a DVO and any additional material provided to the court when the ex parte DVO was made.

At court on the return of the summons to show cause, subject to being satisfied of service on the defendant, the court may confirm the DVO, with or without variations, in the defendant's absence [DFVA s 82]. If the defendant appears, they may seek an adjournment for legal advice or negotiations, consent without admissions to the DVO being confirmed or oppose the confirmation of the DVO and have the matter listed for a contested hearing (See What happens when the application is next in court and Contested hearing).
Interim DVOs

In circumstances where the defendant has been served or is at court, an interim DVO may be made by the court at any time between an application being made and the conclusion of a contested hearing.

The interim DVO can be made even if the defendant objects to the order being made, and before any evidence has been heard from the defendant [DFVA s 35]. In an application to vary an existing DVO, there is a similar power to make an interim variation to a DVO [DFVA s 52A].

The court will not grant an interim order unless it is satisfied that an interim order is required, for example, to restrain imminent threatened domestic violence.

What happens when the application is in court?

Where defendant has not been served:

If the court does not have a proof of service of the application on the defendant, the application will be adjourned to another date and the court will order a fresh summons to issue on the defendant. This allows more time for the bailiff or the police to give the documents to the defendant.

In the case of an ex parte DVO, if the ex parte DVO and summons to show cause has not been given to the defendant, or if there is no proof of service on the court file, the court will issue a fresh summons to show cause on the defendant and set a new date for the return of the summons to show cause.
Where defendant is served and does not attend court:

Subject to being satisfied that there are reasonable grounds for a DVO to be made, the judge may make a final DVO in the terms of the application. The final order will generally be made for 12 months, but can be made for a longer or shorter period. The final DVO will not be enforceable against the defendant until it is served by the court, police or in another way ordered by the court [DFVA ss 119-120].
Where defendant attends court:

Consent without admissions: If the defendant agrees to the making of the DVO, the judge can make an order by consent [DFVA s 38(2)]. The defendant can consent to the order without admitting to any of the allegations contained in the application. This does not change the effect of the DVO. An order made when the defendant is present in court is in force immediately [DFVA s 119(a)].

A consent order can also be made by the registrar if both parties are present at the court registry, without the need for the matter to be heard in court [DFVA s 38]. In practice, this procedure is rarely used, and the majority of matters are heard by a judge.

When a consent order is made, the judge or registrar is to explain the effect of the order to the defendant [DFVA s 89].

Adjournment to a future date: The defendant may attend and seek an adjournment for legal advice or negotiations. In some cases a longer adjournment may be sought, for example, to allow the defendant to engage in rehabilitation, a family violence program or to obtain mental health treatment.

Offer of undertaking: The defendant may offer an undertaking and if the applicant/protected persons are happy for the matter to resolve by way of undertaking, they will then seek leave for their application for a DVO to be withdrawn. Note that an undertaking will not be accepted by the court if a protected person objects or the court if not sufficiently satisfied that it would be appropriate to revoke a DVO or to grant leave for the application for a DVO to be withdrawn (See What is an undertaking?).

List for contested hearing: If the defendant or a protected person objects to the DVO being made or confirmed, the court will list the matter for a contest hearing (see Contested hearing).

If a matter goes to hearing, a judge will determine whether or not a DVO is made, its terms and its duration. As such, rather than risk an adverse or unwanted outcome and expend further time and resources in proceeding to a contested hearing, parties may prefer to negotiate an outcome.

Options for a negotiated outcome include:
  • A DVO with less restrictive terms
  • A DVO that is place for a shorter period of time
  • A long interim order (eg 3 or 6 months), with the applicant to withdraw the DVO application and seek revocation of the interim DVO if there are no breaches of the interim DVO
  • An undertaking from the defendant, or
  • The applicant withdrawing their application for a DVO.
An applicant should give careful consideration to whether they and/or the protected persons will be sufficiently protected under the negotiated outcome, as well as whether they are willing to proceed to a contested hearing (See Contested hearing).

Defendants in particular may wish to consider their option to consent without admissions to the DVO. The risk of adverse findings being made against either a protected person or a defendant at a contested hearing should be fully considered. Such findings may put the person at risk of criminal charges or be used against them in Family Law Act proceedings.

Contested hearing

If the defendant or, in a Police s 41 order, the protected person, opposes the application or confirmation of a DVO, the judge will usually list the matter for a contested hearing at a later date.

The judge may set dates for the filing and service of any further evidence on which the parties wish to rely.

Parties may seek to introduce additional evidence to that in the initial application. This may include a further affidavit of the applicant or protected persons, or evidence by witnesses.

The court will rarely allow new evidence to be admitted on the hearing day, because this would be unfair to the other side. Therefore, any evidence on which a party seeks to rely on should be filed in accordance with the judge's directions on listing for hearing, or a minimum of 7 days before the hearing date if no directions were made for filing and service.

The applicant must give evidence to the court in support of their application for a DVO. The applicant should bring to court any relevant witnesses. The defendant may cross-examine the applicant and the witnesses.

If the information in a letter, report, statutory declaration or affidavit is challenged or denied by the defendant, the person who wrote the document must be available at the hearing for cross-examination by the defendant.

The defendant is not required to give evidence, but may do so if they wish. The defendant's evidence could include witness statements, or police and medical reports that contradict the applicant's evidence. The applicant or their lawyer may cross examine witnesses called by the defendant and if the defendant gives evidence they will also be subject to cross-examination.

The court must consider, if such material is before it, the defendant's criminal record and evidence of the defendant's past conduct in relation to the protected persons or other persons. Relevant past conduct may include records of domestic violence against former partners or children, past involvement in domestic disturbances with the protected persons or others, and evidence of violent conduct against others such as assaults, threats to kill or property damage. The court must also consider any family law orders or pending proceedings, the accommodation needs of the protected persons and any other matters the court considers relevant [DFVA s 19(2)].

At the hearing, the judge will hear all the evidence of the parties and then make a decision as to whether or not to there are reasonable grounds for a DVO to be made. The question of whether or not a DVO is needed is an objective test, and the standard of proof is on the balance of probabilities.

The Court has the power to admit and act on hearsay evidence [DFVA s 116]. This means, for example, that if the protected person made an earlier statement to Police that they had been assaulted, but later denied this happened, the Court could still take into account that earlier statement in deciding whether or not a DVO is needed.

Of particular relevance, but not limited to a hearing for confirmation of a Police s 41 DVO, the judge may make a final DVO even if the 'protected person denies or does not give evidence about fearing domestic violence' [DFVA note to s 18(1)].

Protection for protected persons and vulnerable witnesses at hearing

The law recognises that a vulnerable person may suffer if required to give evidence about sensitive matters in an open court in the presence of the defendant and that a protected person may be fearful, intimidated or suffer harm if subjected to direct cross-examination by the defendant. A protected person named in an application for a DVO as well as a protected person named on a DVO, are classed as vulnerable witnesses [DFVA ss 13, 104].

The DFVA provides a range of court procedures to support vulnerable witnesses in giving evidence, including the use of audio visual link, support of an appropriate person and partition screens [DFVA ss 106, 110-112]. The court must be closed when a vulnerable witness gives evidence [DFVA s 106], subject to an interests of justice exception [DFVA s 106(2)]. In making such an exception the court must have regard to any harm that could be caused, or whether the witness would be able to give evidence effectively [DFVA s 112].

There are additional rules in the DFVA that deal with the evidence of children. Under the DFVA, the evidence of a child must be given by a written or recorded statement. A child is not required to attend the hearing of the matter and cannot be cross-examined on their evidence [DFVA ss 108, 109].

Cross-examination by defendant

Where a defendant is unrepresented, the Court may make an order that the defendant's questions be put through a person appointed by the Court [DFVA s 114(3)]. The appointed person is not allowed to ask the witness any other questions or give legal advice to the defendant [DFVA s 114(3B)].

Whether represented or not, the defendant is not allowed to ask questions that are irrelevant to the issues before the court, offensive or intended to intimidate the applicant or their witnesses.

Application to vary/revoke a Court DVO

While a Court DVO is in force, either party may apply to have it varied or revoked . A person may wish to vary or revoke a DVO for a number of reasons, such as:
  • The relationship between the protected person/s and the defendant has improved and they now wish to have contact with each other. This could include revoking the DVO or varying the DVO to permit contact, but restraining the defendant from assaulting or threatening the applicant
  • The original DVO permitted contact and the applicant now wishes to prevent the defendant from contacting them because they have breached its conditions and continue to threaten, assault or harass the applicant. That is, the terms of the DVO do not provide sufficient protection, and
  • The DVO is about to expire and the applicant feels that it should be extended for a further period.
The application to vary a DVO may be made by:
  • A person protected by the order
  • A police officer or other adult acting for a protected person
  • The defendant, or
  • Another person granted the leave of the court.
The defendant will only be able to proceed with an application to vary or revoke the DVO if the court is satisfied that there has been a substantial change in the relevant circumstances since the DVO was made or last varied. A substantial change of circumstances could include that the defendant has successfully completed a course of counselling or rehabilitation.

In urgent circumstances, an order can also be varied by the court or the clerk on an ex parte basis, or by the police who can telephone or fax a magistrate where it is not practicable to attend court. The police can only apply to the court to vary or revoke a DVO if they are satisfied that there has been a substantial change in the relevant circumstances since the order was made or last varied. See section 'Urgent review of a Police DVO by a Police Officer' in Changing a Police s 41 DVO before the next court date.

Immigration and domestic violence

Under the Migration Act, certain people applying for permanent residence in Australia can continue with their application for a permanent visa, even if their relationship with their partner (sponsor) has broken down, if they or a member of their family unit have experienced family violence by their partner.

Family violence is defined as:

'conduct, whether actual or threatened, towards:
  • the alleged victim
  • a member of the family unit of the alleged victim
  • a member of the family unit of the alleged perpetrator
  • the property of the alleged victim
  • the property of a member of the family unit of the alleged victim
  • the property of a member of the family unit of the alleged perpetrator
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.'

Family violence is not just physical harm - it may also include other forms of abuse such as psychological and/or financial abuse.

Partner visas

These domestic violence provisions apply to permanent visa applicants only and include primary applicants for:
  • Partner/Spouse (permanent) (subclass 100) visa
  • Interdependency (permanent) (subclass 110)*
  • Partner/Spouse (temporary and permanent) (subclasses 820/801) visas
  • Interdependency (temporary and permanent) (subclasses 826/814)*.
*These visas have been closed to new applicants from 1 July 2009, when same sex partner visas were folded within the existing partner visa categories. However, existing applicants under the old categories covered by family violence provisions.

The partner visa process in Australia is a two-stage process - when an applicant applies for a temporary partner visa, he/she essentially makes an application for a permanent visa at the same time. If the applicant's relationship breaks down after they have applied, and been granted, their temporary spouse visa, the applicant can still be considered for permanent residence if they provide acceptable evidence that they or their dependants have been the victim of family violence committed by their Australian partner. However, the applicant will also have to provide evidence that their relationship with their Australian partner was genuine until it ended, and that the family violence took place during the relationship. Note that these family violence provisions only apply to applicants who are already in Australia, and by prospective marriage visa holders already in Australia and who have married their sponsor.

Skilled stream (business)

Partners of primary applicants for:
  • Established Business in Australia (subclass 845)*
  • State/Territory Sponsored Regional Established Business in Australia (subclass 846)*
  • Labour Agreement (subclass 855)*
  • Employer Nomination Scheme (subclass 856)*
  • Regional Sponsored Migration Scheme (subclass 857)*
  • Distinguished Talent (subclass 858).
* These visas have been closed to new applicants from 1 July 2012. These family violence provisions apply to those applicants who lodged their skilled (business) stream visa applications before 1 July 2012.

The partners of primary applicants for certain business visa classes may be considered for permanent residence if the following apply:
  • the married or de facto relationship broke down after the application for the business or skilled visa had been lodged and
  • they provide acceptable evidence that they or their dependants have been the victim of family violence committed by the primary applicant.
If the primary applicant is granted permanent residence then the partner may be granted permanent residence at the same time under the family violence provisions.

Temporary visa holders

If the victim of family violence is the holder of a temporary visa (see Visitor Visas) as a dependent of their partner, the primary visa holder, then she/he will not be able to use the family violence provisions. It is recommended you seek advice from an Immigration lawyer and/or Accredited Specialist.

Forms of acceptable evidence

Evidence of relationship breakdown due to family violence, for the purposes of the Migration Act, can be judicial (that is, produced by a court) or non-judicial.
Acceptable judicially determined evidence

Any one of the following is acceptable judicially determined evidence:
  • certain court injunctions under the Family Law Act 1975
  • certain court orders against the partner made under an Australian state or territory law (such as a domestic violence order)
  • evidence that the partner has been convicted (or has recorded a finding of guilt) of an act of violence against the visa applicant or their dependants.
Acceptable non-judicially determined evidence

New requirements for non-judicially determined evidence became effective from 24 November 2012. For people who make their first family violence claim on or after 24 November 2012, the minimum evidence required from an applicant who is making their first written claim of family violence is the following:
  • a statutory declaration using Form 1410 Statutory declaration for family violence claim or a generic statutory declaration completed by the alleged family violence victim, which sets out the allegation of family violence and names the person alleged to have committed it. If you use a generic statutory declaration, ensure the following is provided
    • details of the allegation of the relevant family violence
    • name of the person who allegedly committed the relevant family violence
    • if the relevant family violence was not committed towards the applicant the statutory declaration must also
      • provide the name of the alleged victim
      • identify the relationship between the maker of the statutory declaration and the alleged victim
    • the effect the alleged family violence has had on visa applicant.
  • at least two documents from the list of evidence specified in legislative Instrument IMMI12/116, available here: https://www.legislation.gov.au/Details/F2012L02237 . This provides a list of the acceptable forms of evidence that can be provided in support of a non-judicial family violence claim.
Alternatively, evidence of a family violence claim can be in the form of a joint undertaking by the visa applicant and their partner, related to an allegation that is before the court that the partner has committed an act of violence against the visa applicant or their dependants.

Any other evidence, in addition to the minimum requirements outlined above may be provided to the Department for consideration. This additional evidence cannot be in place of the minimum evidence that is required.

If evidence (such as a statutory declaration or official letter) is being provided by a professional or other agency as required under the legislative instrument it is expected that such a statement will include detailed information about the family violence claim. The statement should include the following information:
  • details of the allegation of the relevant family violence
  • the name of the person who allegedly committed the relevant family violence
  • the name of the alleged victim
  • evidence or reasons that have informed this opinion or assessment
  • details about their professional relationship with the alleged victim or their family members and information about any services or support they have offered in relation to the alleged family violence.
Note: There are penalties under both the Statutory Declaration Act 1959 and the Migration Act 1958 for providing false information.

Where the first family violence claim was made before 24 November 2012 the relevant version of Form 1040, Statutory declaration relating to family/domestic violence, should be used for the purpose of providing a statutory declaration under the family violence provisions. See: Form 1040 - Statutory declaration relating to family violence.
Referral for independent assessment

If the Department have reasonable doubts regarding the strength of a non-judicially determined claim of family violence, they may refer the evidence supporting the claim to an independent expert for assessment. The independent expert will provide an opinion to the Department either that family violence has or has not occurred. This process may require an interview with an independent expert. An independent expert's opinion must be accepted by the Department. In recent years, the majority of claims have been referred to an independent expert, regardless of the strength of the claim.

For more information, see https://www.border.gov.au/about/corporate/information/fact-sheets/38domestic

Injunctions under the Family Law Act

Under the FLA, an injunction is available to a person who is married, in a de facto relationship with children or who has children to another person but does not live with them. An injunction for personal protection can order the offender to stay away from the applicant and the children [FLA s 68B]. The court can also make orders that give one party sole occupancy of the family home [FLA s 114]. The NT Supreme Court, the Family Court and the Federal Circuit Court can make injunctions (see Parenting after separation).

This option's primary advantage is that sole occupancy orders can, as part of a property settlement, be made for a period of many years. Family law injunctions can be made for an unspecified period, so they may be a more long-term solution. A person can obtain both family law orders and a DVO.

Personal violence restraining orders

Personal violence restraining orders are designed to ensure the safety and protection of persons who experience personal violence outside a domestic relationship as defined in the DFVA. The Local Court reforms replaced the orders under Part IVA of the Justices Act through the introduction of the Personal Violence Restraining Order Act (PVROA). The changes came into effect on 1 May 2016 as part of the Local Court reforms, see above section 'What can the law do?'. The key changes introduced include:
  • Provision for interim personal violence restraining orders [PVROA s 19]
  • Definition of 'personal violence offence'' to include economic abuse, intimidation, harassment, stalking and damage to property [PVROA s 3]
  • Removal of any filing fees for proceedings under the PVROA
  • Court can prohibit publication of details of a protected person if it is satisfied there is a risk of harm to the protected person [PVROA s 20]
  • Court can order disclosure of information about the identity or whereabouts of the defendant [PVROA s 21], and
  • Automatic suspension of a firearms licence upon the making of an interim personal violence restraining order [FA s 39(1)].

Key features

An application for a PVRO may be made by a person seeking protection, an adult acting for the person seeking protection or a police officer [PVROA, s 10]. The application must be made in accordance with the rules of the Local Court [PVROA s 12] and only one (1) person aged over 15 can be named as the protected person or the defendant in a personal violence restraining order [PVROA s 11].

Personal violence offences are defined in s 3 PVROA, and include any offences of assault, indecent assault or reckless behaviour which may cause personal injury. Section 3(b) expands that definition to include:
  • Any conduct causing harm
  • Damaging property (including animals)
  • Intimidation
  • Stalking
  • Economic abuse, and
  • Attempting or threatening to commit the conduct listed above.
Subject to certain exceptions in the interests of justice, including a history of violence and previous unsuccessful mediation, the Court must refer the person whose protection is sought and the defendant for mediation under the Community Justice Centre Act before hearing the application [PVROA s 14]. Once mediation has been attempted, the Director of the Community Justice Centre must write a report on the mediation to the court.

If mediation fails to resolve the dispute, the matter will proceed to a hearing, where the court will determine if it is satisfied on the balance of probabilities, that:
  • A personal violence offence has been committed, or is likely to be committed, by the defendant against the person whose protection is sought [PVROA s 15].
The Court will consider the safety and protection of the person whose protection is sought and any affected child to be of paramount importance [PVROA s 16(1)]. Note that where a domestic relationship can be established, an application for a DVO is likely to be more appropriate.

No filing fees applicable

As with DVO applications, Reg 8 of the Local Court Regulations provides that no fees are payable in relation to proceedings under the PVROA.

Service and hearing procedure

The rules of the Local Court determine the procedure for any application hearing, and s 13 PVROA provides that the defendant must be given notice of the hearing date as soon as practicable. See Local Court - Civil Jurisdiction section in Chapter on Courts and Tribunals. The Local Court (Civil Procedure) Act can be found here: http://notes.nt.gov.au/dcm/legislat/legislat.nsf/.

Refer to the DVO procedure section, Contested hearing, for general guidance.

Interim Orders

Section 19 PVROA allows the court to make an interim personal violence order even if the defendant objects to the order or has not given evidence [PVROA s 19(2)]. A s 19 interim personal violence order will remain in force until revoked or at the time determined by the court making a personal violence order between the parties [PVROA s 19(3)].

Personal violence restraining orders and the Firearms Act

A firearms licence, permit or certificate of registration is automatically suspended on the making of an interim personal violence restraining order [FA s 39(1)].

Under s 40 of the FA, a person's firearms licence, permit or registration is automatically revoked where a personal violence restraining order, or similar order made in another State or Territory, is made. Section 10(3)(ga) FA also provides that while a personal violence restraining order is in force against a person, they will not be granted a firearms licence, permit or registration.

Crimes compensation

Victims of domestic violence suffering from physical or psychological injuries that are the result of a criminal offence or may be characterized as "domestic violence injuries" may be eligible for financial assistance under the Victims of Crime Assistance Act. A criminal offence includes assault, a breach of a DVO and sexual assault (see Injuries and damage caused by crime).

Domestic violence services

There are a range of domestic violence organisations throughout the NT:

Darwin

Domestic Violence Legal Service
Tel: 8999 7977

Top End Women's Legal Service
Tel: 8982 3000

Northern Territory Legal Aid Commission
Tel: 1800 019 343

North Australian Aboriginal Family Legal Service
Tel: 8923 8200

Katherine

Katherine Women's Information and Legal Service
Tel: 8972 1712

North Australian Aboriginal Family Legal Service
Tel: 8972 3200

Alice Springs

Central Australian Women's Legal Service
Tel: 8952 4055 or 1800 684 055

Central Australian Aboriginal Family Legal Unit
Tel: 1800 088 884

NT Legal Aid Commission
Tel: 1800 019 343

Central Australian Aboriginal Legal Aid Service
Tel: 8962 1332

Tennant Creek

Central Australian Aboriginal Family Legal Unit
Tel: 1800 088 884

Central Australian Aboriginal Legal Aid Service
Tel: 8950 9300

Specialist Migration Services

Playfair Visa and Migration Services 1800 031 683

Emergency accommodation

Darwin

Dawn House Women's Shelter (for women with children only)
Tel: 8945 1388

Darwin Aboriginal and Islander Women's Shelter
Tel: 8945 2284

Catherine Booth House Women's Crisis Centre (for single women only)
Tel: 8981 5928

Missionaries of Charity
Tel: 8981 3428

Stanley House or Oakley House (YWCA)
Tel: 8945 3774 / 8945 5015

East Arnhem

Crisis Accommodation (Gove)
Tel: 8987 1166

Katherine

Katherine Women's Crisis Centre
Tel: 8972 1332

Tennant Creek

Tennant Creek Women's Refuge
Tel: 8962 1940

Alice Springs

Alice Springs Women's Shelter
Tel: 8952 6075

Darwin

Lifeline (24 hours)
Tel: 13 11 14

Counselling Services

Dawn House has a Domestic Violence Counselling Service. See http://www.dawnhouse.org.au/domestic-violence-counselling-service

1800 Respect lists services across the Northern Territory, including rural and remote areas: https://www.1800respect.org.au/service-support/northern-territory-domestic-family-violence-and-sexual-assault-services/

Relationships Australia also provides counselling services to those experiencing domestic violence http://www.nt.relationships.org.au/services/family-violence-prevention .

Sexual assault services

Sexual assault services

Health centres

Community Health/Care Centres

Remote Health Centres

Emergency material assistance

Crisis and special help

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