Domestic violence laws in Australia

9. Northern Territory: Domestic and Family Violence Act 2007 (NT)

2.9.1. In the Northern Territory the principal legislation relating to domestic violence protection orders is the Domestic and Family Violence Act 2007 (NT) (the NT Act). An amendment passed on 18 February 2009 now provides for mandatory reporting of serious physical harm in domestic relationships.

Objects of the NT Act

2.9.2. The objects of the NT Act are set out in s 3(1) as follows:

to ensure the safety and protection of all persons, including children, who experience or are exposed to domestic violence; and
to ensure people who commit domestic violence accept responsibility for their conduct; and
to reduce and prevent domestic violence.

2.9.3. Section 3(2) provides that the objects are to be achieved by providing for:

the making of domestic violence orders to protect people from domestic violence and to encourage the people committing it to change their behaviour;
the registration of orders made in other jurisdictions;
the enforcement of those orders.

Domestic violence orders: Overview

2.9.4. The NT Act provides for two categories of domestic violence orders (DVOs) – court DVOs and police DVOs. Court DVOs are of three broad types:

a CSJ DVO made by the Court of Summary Jurisdiction (CSJ) (s 28) (interim DVOs (s 35) and consent DVOs (s 38) can also be made);
a DVO made by a court in criminal proceedings (s 45); or
a DVO (including a police DVO) that has been confirmed by the CSJ (s 82).

2.9.5. A police DVO may be made by an authorised police officer when it is necessary to ensure a person’s safety, and it is not practicable to obtain a CSJ DVO because of urgent circumstances, but a CSJ DVO might reasonably have been made if it had been practicable to apply for one (s 41).

2.9.6. A person who is to be protected by a DVO is referred to as a ‘protected person’, and the person against whom the order is made as ‘the defendant’. The person or court that issues a DVO is called ‘the issuing authority’ (s 4).

Who can make orders?

2.9.7. The CSJ, or a clerk of the CSJ, may make a DVO. In addition, a court before which a person pleads guilty to, or is found guilty of, an offence involving domestic violence may also make a DVO against that person (s 45(1)).

2.9.8. DVOs may also be made by the police, and in some cases may be confirmed or varied by a magistrate.

Which relationships are covered?

2.9.9. A DVO can be made for the protection of a person who is in a ‘domestic relationship’ with the person against whom the order is made (s 13(2)). Section 9 provides that there is a ‘domestic relationship’ between two persons if:

one is or has been in a ‘family relationship’ with the other, i. e. a spouse or de facto partner, or is otherwise a relative, including a person who is a relative according to Aboriginal tradition or contemporary social practice (s 10);
one has or has had custody, guardianship, or a right of access to the other;
one ordinarily or regularly lives, or has lived, with the other person or with someone else who is in a family relationship with the other person;
one is or has been in a family relationship with a child of the other person;
one is or has been in an ‘intimate personal relationship’ with the other person (whether they are of the same or the opposite sex (s 11), i. e. if:
1. they are engaged to be married to each other, including a betrothal under cultural or religious tradition; or
2. the persons date each other (whether or not there is a sexual relationship), taking account of circumstances of the relationship such as the level of trust and commitment, the duration of the relationship, the frequency of contact between them, and the level of intimacy between them; or
one is or has been in a ‘carers relationship’ with the other (i. e. one of them is dependent on the ongoing paid or unpaid care of the other) (s 12).

Who may or must apply for an order?

2.9.10. The following persons may apply for a CSJ DVO (s 28):

an adult in a domestic relationship with the defendant;
with the leave of the Court, a young person (between 15 and 18) in a domestic relationship with the defendant;
an adult acting for a person (including a child) who is in a domestic relationship with the defendant; or
a police officer.

2.9.11. A police officer or child protection officer must apply for a CSJ DVO for the protection of a child if the officer reasonably believes that domestic violence has been, is being, or is likely to be committed, and that it has adversely affected the child’s wellbeing, or is likely to do so (s 29).

Grounds on which an order may be made

2.9.12. An issuing authority may make a DVO only if satisfied that there are reasonable grounds for the protected person to fear the commission of ‘domestic violence’ against him or her by the defendant (s 18(1)). Because this is an objective test, the issuing authority may be satisfied that there are reasonable grounds for the protected person to fear domestic violence, even if the protected person does not give evidence, or denies fearing domestic violence.

2.9.13. Section 5 provides that ‘domestic violence’ is the commission (or attempt or threat of) any of the following conduct, against someone with whom the person is in a domestic relationship:

causing physical harm or harm to a person’s mental health, whether temporary or permanent (eg. sexual or other assault);
damaging property, including causing the injury or death of an animal;
intimidation, i. e. harassment (eg. including regular and unwanted contacting, or giving or sending offensive material to the person, any conduct that causes a reasonable apprehension of violence or damage to the victim’s property, and any conduct that has the effect of unreasonably controlling the person or causes the person mental harm (s 6);
stalking, which includes following the person, or approaching, watching or loitering near a place where the person lives, works or regularly goes for a social or leisure activity, if such conduct is engaged in on at least 2 separate occasions with the intention of causing harm to the person or causing the person to fear such harm to himself or herself (s 7);
economic abuse, which includes coercing a person to relinquish control over assets or income, unreasonably disposing of the person’s property (including jointly-owned property) without consent, unreasonably preventing the person from taking part in decisions over household expenditure or the disposition of joint property, and withholding money reasonably necessary for the maintenance of the person or his or her child (s 8).

2.9.14. The issuing authority may also make a DVO to protect a child if satisfied that there are reasonable grounds to fear that the child will be ‘exposed’ to domestic violence committed by or against a person with whom the child is in a domestic relationship (s 18(2)). Being ‘exposed’ to domestic violence includes not only seeing or hearing the violence, but also witnessing harm resulting from the violence (s 4). (For example, if a man physically assaults his de facto partner while his daughter is at school, the daughter is exposed to domestic violence if, on returning home, she sees her father’s partner with resulting bruising. )

2.9.15. A person who counsels or procures someone else to commit conduct that would be domestic violence if committed by the person is taken to have also committed the conduct (s 18). (For example, if a father advised his son to use physical violence against his (the son’s) wife, the father would be committing domestic violence against the wife. )

2.9.16. In deciding whether to make a DVO, the issuing authority must consider the safety and protection of the protected person to be of paramount importance (s 19).

Application process

2.9.17. An application for a CSJ DVO must be in form approved by the Chief Magistrate and must be filed in the Court (s 30). The current approved form requires the names and addresses of the applicant and defendant, name and address for service of each protected person, a statement of the basis of the application, and an indication of the content of the order sought. It recommends, but does not require, the filing of a statutory declaration setting out the facts establishing a domestic relationship with the defendant, what has happened to make the application necessary and what is expected to happen in the future between the protected person and the defendant.

2.9.18. As soon as practicable after the application is filed, a clerk of the court must give written notice to the parties of the time and place for the hearing of the application (s 31).

Police powers when application made and obligation to investigate

2.9.19. The NT Act does not confer any powers of arrest that depend on an application being made. However, a police officer who reasonably believes that grounds exist for making a DVO against a person, and that it is necessary to remove the person to prevent an imminent risk of harm, has certain relevant powers (s 84). The police officer may enter premises, take the person into custody, and detain them for up to 4 hours until a DVO is made and given to the defendant.

Content and effect of an order

General conditions

2.9.20. A DVO may impose the restraints on the defendant that the issuing authority considers necessary or desirable to prevent the commission of domestic violence against the protected person (s 21(1)(a)). Examples include restraining the defendant from contacting or approaching the protected person, or particular premises, or requiring the defendant to refrain from threatening or assaulting the protected person.

2.9.21. A DVO may also impose on the defendant obligations that the issuing authority considers necessary or desirable to ensure the defendant accepts responsibility for the violence committed against the protected person, and to encourage the defendant to change his or her behaviour (s 21(1)(b)).

2.9.22. In addition, a DVO may include other orders that the issuing authority considers are just or desirable in the particular case (eg. requiring the return of personal property to the defendant or the protected person) (s 21(1)(c)).

Exclusion conditions

2.9.23. A DVO may include a condition restraining the defendant from contacting the protected person, including by remaining in the same home. If the defendant and the protected person normally live in the same home with a child, the issuing authority must apply a presumption that the protection of the protected person and the child are best achieved by them living in the home, when deciding on DVO conditions (s 20).

2.9.24. A DVO may include a ‘premises access order’ requiring the defendant to vacate, or restraining the defendant from entering premises occupied by the protected person except on particular conditions (s 22). For example, a DVO might provide that a husband must leave the family home and can enter the home only by pre-arranged appointment with the protected person, in order to visit their children.

Firearms

2.9.25. On the making of an interim DVO and until the DVO is confirmed or revoked, any firearms licence, permit or certificate of registration held by the defendant is automatically suspended (s 39 of the Firearms Act). A licence, permit or certificate of registration is automatically revoked on a final DVO being made (s 40 of the Firearms Act). The holder must immediately give the relevant firearm and the suspended/revoked licence, permit or certificate of registration to a police officer.

Duration, revocation and variation of an order

2.9.26. A DVO (other than an interim DVO) is in force for the period stated in the DVO itself (s 27).

2.9.27. The Court can make an interim DVO at any time during the proceeding for the hearing of an application for a CSJ DVO (s 35(1)). An interim DVO remains in force until a CSJ DVO is made and the defendant is either in the Court or has been given the CSJ DVO (s 35(3)). However, the Court can also revoke an interim DVO earlier, or fix a later date for it to expire after a CSJ DVO is made.

2.9.28. A person commits an offence by contravening a DVO only if the person has been given a copy of the DVO, even though the DVO is ‘in force’ earlier. (See further in the discussion of enforcement. )

2.9.29. The Court may vary or revoke a DVO on its own initiative or following an application (s 51). An application for variation or revocation may be made by, or on behalf of, a protected person (s 48). The defendant may apply for revocation or variation only with the leave of the Court. The Court can give the defendant leave to apply only if satisfied that there has been a substantial change in the relevant circumstances since the DVO was made, e. g. a change in care arrangements for children, or the defendant’s completion of a rehabilitation program.

2.9.30. If, because of urgent circumstances, it is not practicable to obtain a variation from a court, a court DVO, other than an interim DVO, can be varied by a magistrate, following an application by the police by phone, fax, or email. An application can be made only if the police officer is satisfied there has been a substantial change in the relevant circumstances since the DVO was made (ss 65, 66).

2.9.31. A party to a police DVO may apply to a magistrate for a review of the DVO, and the magistrate may confirm, vary or revoke the DVO (Part 2.9).

2.9.32. A copy of one of the following DVOs given to the defendant is taken to be a summons to appear before the CSJ to show cause why the DVO should not be confirmed by the court:

a CSJ DVO that is made in the absence of the defendant, the defendant not having been given notice of the application (s 37);
a police DVO (s 44), including a police DVO that is confirmed by a magistrate (s 79);
a DVO that is varied without the defendant having an opportunity to be heard (s 59); or
a court DVO that is varied by a magistrate, in urgent circumstances (s 71).
In such a case, at the hearing the Court may confirm (with or without variations)or revoke the DVO (s 82).

Enforcement and breach of an order

2.9.33. If a DVO is in force against a person and the person contravenes the DVO, the person commits an offence, provided that he or she has been given a copy of the DVO (s 120). This is a strict liability offence, i. e. there is no need to prove that the defendant intended to contravene the DVO. The person is liable to a penalty of 400 penalty units (currently, $44,000) or 2 years imprisonment (ss 121(1) and 122(2)). A copy of a DVO is taken to have been given to the defendant if the defendant was before the court when it was made, or it is served in accordance with s 25 of the Interpretation Act (NT) (including sending by post or fax), or given to the defendant in a way ordered by the court, or if a police officer informs the defendant, orally or in writing, of the making and terms of the DVO (s 119).

2.9.34. Except in the case of a police DVO that has not been confirmed by the Court, if the defendant has previously been found guilty of contravening a DVO, the Court must record a conviction and impose a sentence of at least 7 days, unless:

the offence does not result in harm to the protected person; and
the Court is satisfied that it is not appropriate in the particular circumstances (including, if the defendant is between 15 and 18 years old, because of the person’s age) (ss 121(2), (3), (4) and 122(2), (3), (4)).

2.9.35. The NT Act makes no special provision with respect to the arrest of a person suspected of having breached a DVO. However, because breach of a DVO is a criminal offence, the normal rules under the Northern Territory’s criminal law in relation to matters such as arrest, remand and bail will apply.

Procedural protections for applicants and witnesses

2.9.36. DVO proceedings⁶² must be held in closed court:

at all times if the only protected person is a child;
while a vulnerable witness gives evidence;

unless the court considers it in the interests of justice that the proceedings, or part of them, be open to the public (s 106).

2.9.37. ‘Vulnerable witness’ means an adult protected person, or another adult witness who suffers from an intellectual disability or who, in the Court’s view, is under a special disability (s 104). A vulnerable witness is entitled to give evidence from a place outside the courtroom using an audiovisual link. If no audiovisual link is available, or the witness chooses, the witness may give evidence from behind a screen, partition or one-way glass so that the witness cannot see the defendant (s 110). A vulnerable witness is entitled to be accompanied by a support person when giving evidence (s 111).

2.9.38. The evidence of a child must be given by written or recorded statement, and the child is entitled to be accompanied by a relative or other person to provide emotional support (s 107). The child need not appear at the hearing and cannot be cross-examined (s 109).

2.9.39. If the defendant is not represented by a lawyer, the court may order that the defendant can cross-examine a witness with whom he or she is in a domestic relationship only by stating the question to the court or another authorised person, who then repeats it to the witness (s 114).

2.9.40. The court may admit and act on hearsay evidence in making, confirming, varying or revoking a DVO.

2.9.41. The issuing authority must explain to a protected person or the defendant, if present, the content and effect of a court DVO, and the consequences of contravening it, in a language or in terms that are likely to be readily understood by the person concerned (s 89).

2.9.42. A protected person’s residential address must not be stated in a DVO unless it is already known to the defendant, or it is necessary to state the address in order to achieve compliance with the DVO (e. g. if the defendant must stay away from that address) and the protected person’s personal safety will not be seriously threatened and his or her property is not likely to be damaged (s 25). A court DVO may prohibit the publication of the personal details of a protected person or witness, if publication would expose the person to the risk of harm (s 26). It is an offence to publish the name, or other identifying information, of a child who is a protected person, a witness, or otherwise mentioned or involved in a DVO proceeding (s 123).

Protection of children

2.9.43. Subject to some exceptions, a police officer or child protection officer who believes that domestic violence has affected or is likely to affect a child must apply for a DVO to protect the child (s 29). A court may make a DVO to protect a child who may be exposed to domestic violence committed by or against a person with whom the child is in a domestic relationship (s 18(2)).

2.9.44. During a hearing of an application for a DVO, or for confirmation, variation or revocation of a DVO, the court must be closed to the public at all times if the only protected person is a child, unless the court considers it to be in the interests of justice that the proceeding or part of it be in open court (s 106). The evidence of a child must be given by written or recorded statement, and the child is entitled to be accompanied by a relative or other person to provide emotional support (s 107). The child need not appear at the hearing and cannot be cross-examined (s 109). It is an offence to publish the name of, or other identifying information about, a child who is a protected person, a witness, or otherwise mentioned or involved in a DVO proceeding (s 123).

Provisions relating to mediation, counselling or rehabilitation

2.9.45. If the defendant consents, a court DVO may include an order requiring the defendant to take part in a rehabilitation program. The court must be satisfied that the defendant is a suitable person for the program and that there is a place available in the program (s 24).

Recognition and enforcement of orders made in other jurisdictions

2.9.46. The NT Act provides for the registration of ‘external orders’, i. e. orders in the nature of a DVO made under a prescribed law of a State, another Territory or New Zealand. An application for registration may be made by or on behalf of a protected person named in the order (s 93). A clerk of the court must either register the external order or refer it to the court for modification (s 94). Once the order is registered it is taken to be a court DVO (s 97).

2.9.47. Provision is also made for unregistered external orders to have effect for a limited time. If a police officer reasonably believes that a person in the Northern Territory is a defendant named in a current unregistered external protection order, the police officer must make a declaration. While the declaration is in force (for up to 72 hours), the external order has the effect of a court DVO

We refer to a hearing of an application for a DVO, or for confirmation, variation or revocation of a DVO, as ‘DVO proceedings’. This does not include criminal proceedings for contravention of a DVO.

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