Some relationships involve behaviour that is damaging to the other partner and, in some cases, may be criminal.
Healthy relationships are based on equality and respect between partners.
Anything less is disrespectful and given the negative impact it has on the other person, is classified as abusive and falls under the umbrella of domestic violence.
When one partner tries to control the other partner, it can be harmful to both parties. A control or power imbalance can take many forms, including intimidation, threats, stalking or physical and sexual abuse.
This usually results in one partner being frightened of the other, and feeling unsafe in the relationship. Safety is a human need and requires the acknowledgement, attention and acceptance of people, situations and circusmtances within each others capacity. Deliberate and intentional behaviours on the spectrums of rage and neglect amount to abuse and violence and can have a devastating impact on the psychological and emotional state of a victim.
A civil protection order can be taken out by the Police, or the person in need of protection.
To find out how to feel confident and make a report to the Police Click HERE.
In this post we are explaining the grounds, circumstances and process in applying for a protection order.
Definition: A protection order is a set of behaviours that are imposed on the perpetrator, defendant or respondent in a civil claim to stop harassment, intimidation, threats, stalking or actions that otherwise interfere with the life of the person in need of protection.
This could be relevant in a number of circumstances but it is more commonly used to to restrict the behaviour and proximinity of those who are or have been in a relationship where contextual conflict is causing harm.
This harm is usually in the form of emotional and psychological destress (more commonly known as abuse or controlling behaviour).
When making an application you need to consider the outcome you are seeking and the behaviour of the other person that is impacting on you and what it will take to stop that.
It could be distance,
no contact after drinking or taking drugs,
not approaching home or workplace or
seeking consent before attending your home.
It could be no phone or texts, communication only through email.
It could be not to harass you about certain things or damage property.
It could be not to contact friends or family.
It could be complete exclusion from the house where you are both living.
These protective measures are designed to reduce the incidence and the opportunity for conflict.
I am sure you have tried to enforce these protective measures through other means and attempted to find a resolution, but sometimes just telling, asking or requesting that someone do something or not do something as it is impacting on your wellbeing isn’t enough.
Applying to a court is often a last resort, but it can also be the necessary protection that creates distance that allows you time and space to consider the issues, concerns, problems and relationship difficulties you are having.
The most common reasons for a protection order is usually associated with ongoing and repeated disrespectful behaviour that causes distress or harm.
Whilst you may have conflict, the escalation of this conflict doesn’t help to resolve the problem or find a solution. The legal arena was designed to engage representation due to the emotional stress conflict causes. So as a self represented applicant there are a few things you need to understand when navigating an application for protection.
- There is a history.
- There is a version of the story and facts
- There are contributing and influencing factors and circumstances
- There is an impact and harm caused.
These four pillars of information is the evidence you will need to provide to demonstrate why you need to be protected from the person who is causing you harm.
There are rules regarding the submission of evidence, and whilst there are facts, the impact is an important and relevant piece of evidence that can only be given by you. It will be the emotional and psycological distress caused during interactions or attempts to have contact with the person you alledge is being abusive.
A civil claim is not a win or loose scenario it is an application that considers the protection strategies needed by a person who is vulnerable, being harassed or stalked, has felt intimidated by the aggression of the other person or has had their life impacted such as unable to carry out work or parent as they would normally.
Before starting any court proceedings you should:
If you cannot find another option to resolve your matter, you need to know which court is the right place to start a claim, which forms to use and the fees that apply.
For more information:
- Which court or tribunal, which lists all jurisdictions in the state
- Forms and fees, including civil forms
If you represent yourself, do some legal research before starting court proceedings to understand the laws and rules that apply to civil matters.
When both parties appear in an AVO application on the first occasion and there are no related charges the following approach is suggested.
Does the applicant still seek the order? as some days or weeks may have passed and issues and concerns addressed.
Where the defendant is unrepresented, inform that person of the options available.
- an adjournment for legal advice, if required
- consent to an order, without admitting any conduct in the application
- disputing the order.
I have no doubt that if you are in court you have spent a considerable amount of time trying to resolve the issues, enforce boundaries and request respectful behaviour and civil conversations.
The court can be an intimidating place, but understand they are their to help you and if you have exhausted other avenues or things have escalated, the court is obliged to find a solution for you – which means there are many avenues to resolve what is happening and minimise the harm being caused.
If time is spent clearly explaining these choices to the person, the explanation may save time and costs with other parties . Often being summons to court ‘offends’ the other person and they are willing to continue with the conflict, so where the application is for an APVO, s 21 (referral to mediation) should be considered before listing the matter for hearing.
If mediation has failed and the parties are too far apart to make an agreement, this legal process is often the only one you have available. It is stressful, distressing and if there are no other means to stop the abusive behaviour and your fear that it will continue without such protection then follow the process through as it will act as a natural consequence for the behaviour you are being subjected to.
I can tell you that most of the behaviour described in these applications amounts to disrespect and offensive conduct (in a public place) which at minimum are a form of harassment and intimidation which are criminal offences. As is stalking. Whilst being disrespectful is not an ‘offence’, you are not obliged to tolerate this behaviour or suffer as a consequence.
Given that you have told someone to leave you alone, to stop speaking to you about certain things, stop threatening and intimidating you with language and actions that frighten you and make you feel unsafe – if the behaviour continues it is deemed as unacceptable and is a foreseeable behaviour that will have a negative impact.
So what’s “offensive” at law? For your conduct or language to be offensive at law it must, be calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person. Your conduct must also be placed in the context of all the surrounding circumstances. – Section 4 of the Summary Offences Act 1988
The Evidence and proof needed in civil proceedings
To successfully pursue your case in court it is necessary to have evidence to back up your claim.
You can’t just think you have a case, you must be able to prove it.
Evidence can take several forms such as documents, sound and video recordings and witness statements (written statements about what the witness saw or heard). Evidence can also be given through oral statements (testimony) made at court by witnesses.
There are a number of rules of evidence which have been established to ensure fairness in the trial process and to ensure that the best evidence is admitted.
In Queensland, the rules of evidence are governed by the Evidence Act 1977 (Qld).
You should also have regard to any procedural rules under the Uniform Civil Procedure Act 1999 (Qld).
The facts in issue
Evidence is used to prove the “facts in issue” in a court proceeding. The facts in issue are the things you will need to prove in order for your case to succeed.
This will depend upon the cause of action or legal basis which entitles you to commence legal proceedings. For example:
In a case of negligence, a person must show that the other party owed them a duty of care, that this duty was breached and that the person suffered damage as a result.
A person claiming breach of contract must first show the existence of a contract, namely:
- That there was an agreement between the parties,
- That the parties intended to create a legal relationship and;
- That consideration (that is, something of value) was provided as part of the bargain.
Admissibility and relevance
Evidence will only be admissible (allowed into court) if it is relevant. Evidence will be relevant where its existence tends to indicate that one of the facts in issue is more or less likely. Basically, the court will ask whether the evidence you are trying to introduce would help to decide the issue(s) before it. For example, in proving a breach of duty in a negligence claim, evidence about current financial hardship is unlikely to be relevant.
Evidence can either be:
- directly relevant, where it includes an observation, perception or description of a fact in issue; or
- circumstantially relevant, where the Judge or jury can use it to draw an inference which goes towards proving a fact in issue. Things like a person’s past habits or the existence of a motive can often be used as circumstantial evidence.
Circumstantial evidence can sometimes be very persuasive. For example, in a case of personal injury arising out of a machinery malfunction, the fact that an employer had been seen inspecting the machine the previous day might be used by a court to infer that they were aware that it was not working properly.
Exclusion of evidence (“exclusionary rules”)
While generally speaking, evidence that is relevant will be admissible, there are a number of exclusionary rules that may prevent evidence (however relevant) from being admitted by a court.
If a judge decides in their discretion that the evidence is outside the rules, it will be held to be inadmissible and cannot be relied upon to prove the fact in issue.
Whether one of these exclusionary rules applies in your case will be decided by the judge. If the trial involves a jury, they will be sent from the court to allow the matter to be determined in their absence.
Probably the most important of the exclusionary rules is known as the rule against hearsay.
Evidence that amounts to hearsay will not be admitted.
Basically, this means that a person (person A) cannot give evidence of something another person (person B) said in an effort to prove that what was said by that person (person B) was true.
For example, if Karen tells Molly that she had seen a third person, Susan, threaten someone the previous day, Molly would not, as a general rule, be able to give evidence of Karen’s statement at Susan’s hearing. Karen herself would have to be called to give the evidence of what she saw.
The hearsay rule applies not only to verbal statements, but also the contents of documents and non-verbal communication.
There are also several exceptions to the general rule. A statement, for example, which is made at the same time as the central event, will not be subject to the rule.
For example if Karen had heard the victim yell ‘no Susan!’ while they were being threatened, Karen would be able to give evidence of this fact.
The rule against hearsay will also not apply to statements which amount to a confession or admission. Accordingly, if Susan confessed her guilt to Molly she would be able to give evidence of this confession, even though she did not see her do the stabbing.
There are several other exceptions to the rule against hearsay.
Some of these are specific to information contained in documents. For further information on these exceptions consult the Evidence Act.
There are also many textbooks written on evidence law that may be of use.
Opinion & expert evidence
As stated above, when a person gives evidence it must normally be a direct account of what he/she actually saw or heard. A person’s interpretation or opinion will not usually be admitted as evidence.
There are some exceptions to this general position. Firstly, a person’s opinion will be admissible where it relates to a matter within a person’s usual experience. For example, a witness will ordinarily be able to give evidence in relation to the time an event occurred, the weather or the general state or condition of an object.
Secondly, a person may give evidence of their opinion where they are an expert on a matter which falls outside the range of an ordinary person’s experience. Expert evidence may include the testimony of doctors, scientists or other specialised professionals. If your matter is a civil trial, you will be free to call expert witnesses as you see fit. It is important, however, to make sure that the witness you select has appropriate qualifications in the area of interest. If they do not, the judge may refuse to hear their evidence or disregard it.
Burden and standard of proof
Generally speaking, the person who brings an action is said to bear the “onus” or “burden of proof”. Accordingly, if you are the plaintiff (the person who commences the proceedings) it will be up to you to introduce evidence that supports your case. If you fail to do so, the case will be lost.
For a person to succeed in a court case, they must introduce evidence which is sufficiently persuasive: it is not enough simply to have more evidence than the other party. The level of evidence required in a particular case is known as the ‘standard of proof’.
In civil cases, the required standard of proof is known as the “balance of probabilities”. In simple terms, the balance of probabilities will be met if you can successfully establish that
‘the claim you are making is more probable than not.’
This can be contrasted with the standard of proof in criminal cases, which is “beyond reasonable doubt”.
This means that the prosecution must bring evidence of such a standard that there would be no reasonable doubt in the mind of a reasonable person that the accused is guilty.
Presenting your evidence
There are many different types of evidence that can be used in a court case. Whatever form your evidence takes, it will need to be introduced by a witness.
A witness is, essentially, someone who gives evidence in court. A witness may be called upon for a number of reasons – they may be asked to describe something they heard or saw or they will simply be required to verify that a particular document is authentic.
A witness can introduce evidence either orally, in court, or by providing a written statement called an affidavit or statutory declaration which can annex documentary evidence. However, even if a witness prepares an affidavit, the other party may still require them to appear in court if they wish to cross examine them. This will be likely if the evidence is particularly significant or contentious.
For example, say you have a photograph, text message, video or voice recording of the incident, to ensure fairness, it has to be proved where and when the photograph was taken, when the text was sent, the date of the video or voice recording and that it is the accused in the recording. To ensure that it relates to the particular incident and wasn’t fabricated.
You could do this by calling as a witness the person who took the photograph, was present when the text was sent or provide the relevant source who will be prepared to stand up in court and swear on oath the circumstances of taking the photograph, recording the video or witnessing the text or audio.
He or she would then be cross-examined by the other party.
Some evidence may require an expert or third party to provide evidence of the impact, but in terms of emotional and psychological impact – your testimony will be the strongest version of that.
For the best evidence, you can also call an independent witness who can testify that they saw the perpetrator’s behaviour at the time. This can create some discomfort but the support is invaluable.
Written or documentary evidence – disclosure
Any relevant written or documentary evidence in the form of reports, photos or witness statements will normally be provided to the other side before the hearing.
The time for providing this evidence will usually be ordered by the court.
The process in which each party is required to make any relevant documents it has in its possession available to the other party is called “disclosure”.
Provide a cover sheet and label it with Annexure, A,B,C etc and then reference this is in your statement or affadvitt.
In certain circumstances, you can also compel non-parties to provide all documents relevant to the proceedings by issuing a Notice of Non-Party Disclosure.
Generally speaking, you are able to have anyone you wish appear as a witness in a court proceeding. You are also free to determine the order in which these witnesses appear. In calling witnesses, however, you will need to bear in mind the requirement that any evidence they present must be relevant. You should also note the possibility that certain evidence cannot be presented on account of various exclusionary rules discussed above.
All witnesses you intend to rely upon to give evidence should be served with a court document known as a subpoena. A subpoena compels the person named in the subpoena to appear in court. This document must be filed in the court registry before you give it to your proposed witness. If a person fails to comply with a subpoena they may be held in contempt of court (an offence for which they could be imprisoned).
You may also need to give each witness you call some conduct money to ensure they have sufficient funds to travel to court and appear in court when required.
Things to remember
In order to prove your case, your evidence has to be believed.
If you say one thing and the other party contradicts what you say, then the judge (or jury) has to decide which version he or she accepts.
The judge will make the decision on the basis of all of the evidence and his or her assessment of the character of each witness.
The solicitor or barrister for the other side will try to question the reliability or character of you and your witnesses and point out the negative aspects of your case.
In personal violence orders, the impact on the other persons behaviour on you can not be evaluated by the perpetrator so regardless of what they accuse you off, only you know how you manage pain, distress and psychological dysregulation.
Facts tell one part of the situation, your capacity and inability to function can only be described by you. Turning up to work does not make you effective. Going to a friends party does not mean that you weren’t upset.
IMPACT statements include the trauma of your experience.
Productivity is impacted and distractions or destructive behaviour is a by product.
Not all judges or magistrates are trauma informed and whilst they may attempt to dismiss your evidence, remain focused on expressing the way the other persons behaviour is impacting on your daily life, relationships and work capacity. You may have withdrawn socially, engaged in alcohol, drugs or risk taking behaviour but generally you will feel low levels of mood or mania and this dysfunction will be impacting on your emotional state.
Judges are experienced in knowing what can and cannot be included in evidence. If the judge stops you from giving certain evidence, the judge is not trying to prevent you from making out your case, but rather letting you know that what you are saying will not help your case and it would be unfair to the other party to allow that evidence.
The judge would make a similar decision if the other party was trying to use such evidence. You have the right to argue your points, but at the same time it is important to listen to the judge. The judge knows the rules and the law and must ensure that both sides are treated fairly.
Why not observe a court case?
You may find that the best way to get to grips with the rules of evidence in a court is by observing them in practice. This will allow you to see how a barrister or solicitor questions a witness and give you an excellent insight into court processes generally.
Most court hearings are open to members of the public. You can find out where and when court hearings will be occurring by checking the daily law-lists.
The court schedule for any given day will be made available on this website by 6pm the previous evening.
The information in this resource is for general information purposes only and should not be relied on as legal advice, we would always recommend you seek independent or legal advice if you have any questions. If you need legal advice, please contact the Law based organisations that can give advice to people.