Domestic violence orders

For legal aid to be granted to apply, vary or respond to an application for a protection order in the magistrates court the following tests must be satisfied:

• The applicant meets guideline 3 – domestic violence, and
• The applicant meets the means test, and
• The applicant meets the merits test.

Documentary requirements

Application received from client

Applicants seeking a grant of legal assistance must forward all the following documents for assessment:

• a completed and signed Legal Aid Queensland application form
• proof of income and assets (refer to the means test)
• details of the alleged incidents of domestic violence that has occurred
• if a police protection notice issued, a copy of the notice
• any police statements related to a criminal offence
• if a temporary protection order has been made, a copy of the application for a protection order and a copy of the temporary protection order
• for respondents:
  • details of evidence which demonstrates that the application sought by the aggrieved is unlikely to be successful
  • a copy of the application by the other party.

Application received from preferred supplier or in-house practitioner

Practitioners seeking a grant of legal assistance must electronically submit an application for aid via the Grants Online system attaching:

• a domestic violence information request
• proof of income and assets (refer to the means test)
• details of the alleged domestic violence that has occurred
• if a police protection notice issued, a copy of the notice
• any police statements related to a criminal offence
• if a temporary protection order has been made, a copy of the application for a protection order and a copy of the temporary protection order
• for respondents:
  • details of evidence which demonstrates that the application sought by the aggrieved is unlikely to be successful
  • a copy of the application by the other party.

The following documents are retained on file but may be requested by Legal Aid Queensland:

• a completed and signed Legal Aid Queensland application form.  
• all documentation as outlined in the case management standards - family law.

Interpretation

Statement of intent

Legal Aid Queensland acknowledges the work of the Women's Safety and Justice Taskforce 2021 and that it follows on from the Honorable Dame Quentin Bryce AD CVO's, landmark 'Not Now, Not Ever' report, which led to widespread improvements in Queensland's response to domestic and family violence.

The Women's Safety and Justice Taskforce Chair Margaret McMurdo noted "Legislators, public servants, friends, family, bystanders, community members, service providers, police, lawyers, judicial officers - of whatever gender - together we can do so much more to make perpetrators accountable and keep women and children safe. But first - Hear her voice."

An estimated 4.2 million people aged 18 years and over (21%) have experienced violence, emotional abuse, or economic abuse by a cohabiting partner since the age of 15.¹

• Of women, 27% (2.7 million ) have experienced violence or emotional/economic abuse by a cohabiting partner.
• Of men, 15% (1.5 million) have experienced violence or emotional/economic abuse by a cohabiting partner.
• Women were more likely than men to experience violence, emotional abuse and economic abuse by a cohabiting partner.

This is a sombre picture for those working with people affected by domestic and family violence. Legal Aid Queensland plays an important role in this landscape – by funding both in-house and private solicitors to represent people in domestic violence and family law matters and by providing court assistance services in Brisbane.

Given this role, Legal Aid Queensland acknowledges and supports the object of Queensland’s new laws on domestic violence – that is to maximise or augment the safety, protection and wellbeing of people who fear or experience domestic violence, including their children. Legal Aid Queensland also acknowledges and supports the principles of the legislation that –

• people who fear or experience domestic violence, including children, should be treated with respect and the disruption to their lives minimised,
• vulnerable people have characteristics that may make them particularly vulnerable to domestic violence and that any response to the domestic violence should take account of those characteristics, and
• where there are conflicting allegations of domestic violence, the person who is most in need of protection should be identified.

Legal Aid Queensland believes that these aspects of the legislation needs to be reflected in its daily activities - in the way that our officers assess grants of legal aid, in the way our client service officers deal with clients, in the way our lawyers represent people.

Giving effect to this object and principles will also give effect to the intention of our funders. Both the Queensland and Australian government(s) fund Legal Aid Queensland to provide legal assistance for a range of legal problems. Both prioritise people and/or children experiencing or at risk of experiencing domestic and family violence.²

¹ Personal Safety Australia, Australian Bureau of Statistics (2021/2022 financial year) published 15 March 2023. Cohabiting partner violence, emotional abuse, and economic abuse.

²Schedule A of the National Legal Assistance Partnership Agreement 2020-2025 prioritises matters involving allegations of domestic violence and matters where the safety and welfare of children are at risk.

The applicant demonstrates in their application that an act of domestic violence has occurred

Domestic violence is defined as any of the following behaviours that a person commits against another person if a relevant relationship exists between the two persons. Behaviour that:

• is physically or sexually abusive, or
• is emotionally or psychologically abusive, or
• is economically abusive, or
• is threatening, or
• is coercive, or
• in any other way controls or dominates the second person to fear for their safety or wellbeing or that of someone else.

Relevant relationship includes:

• spousal relationship (married, de facto, registered relationships)
• intimate personal relationship (couple or dating/engagement relationships)
• family relationships
• informal care relationships

A domestic violence order is necessary or desirable to protect the applicant and/or their children from domestic violence

Examples of where a domestic violence order is necessary or desirable includes:

• The aggrieved, children in the household of the aggrieved, other children, relatives or associates of the aggrieved have experienced actual or threatened domestic violence.
• Children of the aggrieved and/or other children have been exposed to actual or threatened domestic violence.
• It is likely that they will be exposed to further actual or threatened violence.
• There is a need to protect the safety or wellbeing of the aggrieved and/or their children.

The Queensland Police Service has commenced acting in an application on behalf of the aggrieved but are no longer able to act

The Queensland Police Service (QPS) is a principal provider of representation for domestic violence proceedings.

• Division 2 of the Act deals with the power of the QPS to issue a police protection notice. This allows police to issue “on the spot” notices which are taken to be an application for a protection order made by a police officer. For the notice to issue the respondent must be present when the police attend.
• In other instances the QPS may, following investigation, initiate an application for domestic violence.

When the QPS is the applicant a grant of legal assistance is not available for the aggrieved.

QPS can sometimes withdraw from acting in a matter before it is finalised. If this is the case a grant of legal aid may be available subject to the means test, guidelines 3 – domestic violence and the merits test.

QPS Operational Procedures Manual states:

• A police prosecutor can assist in private applications even if they are not the applicant for the domestic violence order.
• Where a cross application is to be heard before hearing the original application or together with the original application, the QPS Operational Procedures Manual states that the police prosecutor should continue to assist the original aggrieved for the duration of the hearing.

National Domestic Violence Orders

The National Domestic Violence Scheme aims to increase protections for victims of domestic and family violence across Australian borders by automatically recognising and enforcing domestic violence orders issued in any Australian State or Territory. These orders are recognised as interstate orders.

In Queensland, a recognised interstate order is:

• Any Domestic Violence Order made by the Court (temporary protection orders, protection orders and varied orders
• Police protection notices, and
• Release conditions.

The National Domestic Violence Order Scheme did not introduce consistent domestic and family violence laws. Each State and Territory has domestic and family violence laws unique to that jurisdiction. The scheme does not lead to any standardisation of the conditions which appear on the domestic violence orders of the different jurisdictions, including those which are mandated as standard conditions on orders.

If the order was made before 25 November 2017, the order can be “declared” a national DVO. It can be enforced in all states and territories in Australia. In Queensland, an application to a Magistrates Court is made using the DV35 Application for declaration of a DVO to be a recognised interstate order. The respondent is not served with the application and it is an administrative process.

If the order was made after 25 November 2017, the order will apply automatically in all Australian states and territories and be included in a National register and enforced in all states and territories in Australia. In Queensland this is recorded in the Queensland Wide Interlinked Courts (QWIC) system.

After 25 November 2017 a DVO issued in New Zealand can be registered in any state or territory of Australia and will automatically be a recognised interstate order.

If an applicant for aid has a nationally recognised Domestic Violence order, aid will not be approved to obtain a Queensland Domestic Violence Order unless extra conditions are needed for protection or the application names a person not covered in the original order.

Legal Aid Queensland will only provide funding for proceedings in Queensland (Forum Test) where all relevant criteria are met.

Vary a domestic violence order

Aid may be granted to vary a domestic violence order provided the applicant meets the merits test with regards to the reasonable prospects of success test and the appropriateness of spending limited public funds test. Examples where an order may need to be varied include:

• to give operation to family court orders
• to extend an order where continuing protection is required
• to increase conditions to protect the aggrieved and/or their children where there has been evidence of prior breaches of orders during the operational period
• there has been a significant change in circumstances.

An application can be made in any Australian jurisdiction for variation of a nationally recognised order. This means subject to certain requirements, Queensland orders can be varied interstate, and interstate orders varied in Queensland.

An application to vary is made in the same way as orders made in Queensland and applying the same criteria. A Queensland Court can vary an order that was made in any Australian state and territory. However, the court cannot vary an order if it is a kind of order that cannot be varied in the state in which the order was made.

The respondent provides evidence which demonstrates the application by the aggrieved is unlikely to be successful

Aid will be granted to respondents to domestic violence applications where evidence is provided which demonstrates the application by the aggrieved is unlikely to be successful and the respondent meets the means test and merits test.

Examples of when Legal Aid Queensland will fund a respondent in domestic violence proceedings are:

• The respondent is not the main perpetrator of the domestic violence and is the person who is most in need of protection.
• The respondent has information which means there are reasonable prospects of success in opposing the making of the order.
• The respondent has a real likelihood of successfully challenging the conditions of the domestic violence order sought by the aggrieved.
• The respondent has a defence to the application – for example the parties are not in a relevant relationship, the respondent has an alibi or a basic defence at law.
• The respondent is under the age of 18 years old.
• The respondent has a substituted decision maker.
• The respondent has information to support that they do not have the capacity to understand the nature of the proceedings of the effect of orders.  

Grant(s) of aid

The grant of aid to apply, respond or vary a protection order in the magistrates court under the Domestic and Family Violence Protection Act 2012 is DV1.

Extension(s) of aid

If the matter proceeds to a contested final hearing, an extension of aid is available for the contested hearing. The grant of aid is DV2.

If the contested hearing goes for more than one day, an extension of aid is available for the additional day/s. The grant of aid is DV2A.

Counsel 

An extension of aid may be available for counsel at the final contested hearing if the nature and extent of funding criteria are met.

Additional preparation

An extension of aid may be available for additional preparation if the nature and extent of funding criteria are met. 

Review of decisions

A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decisions).