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Navigating Domestic Violence Protection Order Proceedings

Preston and Associates: Family and Criminal Law

Brisbane | North Lakes 

www.prestonandassociates.com.au

 

Domestic Violence Protection Order Court Proceedings

Going to court can be a very daunting experience. Particularly in circumstances where you are either applying for, or defending an Application for a Domestic Violence Protection Order (‘DVPO’).

The purpose of this blog is to provide a general overview of the court process for domestic violence matters in Queensland. The blog is not intended to provide legal advice and we would strongly recommend contacting Preston and Associates to discuss your matter with one of our experienced lawyers. You can find our contact details at www.prestonandassociates.com.au

The Court Process

Applications for a DVPO are heard in local Magistrates Courts.

To commence the proceedings an Application is filed in which the Applicant must set out the grounds on which the Application is made and state the nature of the order sought. More specifically, the Application will need to describe the allegations of domestic violence alleged to have been committed by the Respondent.

An Application can be made by the Aggrieved, a police officer or another person who the Aggrieved asks to act on his/her behalf.

The Domestic and Family Violence Protection Act 2012 (‘The Act’) requires the police to serve a copy of the Application on the Respondent. If the Aggrieved or approved person makes an Application to the court, then the clerk of the court will give a copy of the Application to the officer in charge of the local police station. The police will then arrange to serve the Respondent with a copy of the Application.

An Applicant can request that the Application be heard before the Respondent is served, so a Temporary Protection Order can be made. Whether an urgent Application for a Temporary Order will be heard by the Court, in the absence of the Respondent, will depend on the availability of the presiding Magistrate and the nature of violence alleged.

The court may make a temporary protection order against the Respondent only if the court is satisfied that a relevant relationship exists between the parties and the Respondent committed domestic violence against the aggrieved.

Upon an Application being filed, the matter is initially listed for a Mention, where both parties and/or their legal representatives must attend at the Court.

At that time, the Magistrate will ask the Applicant whether he/she wishes to proceed with the Application, and further will ask the Respondent whether he/she is seeking to oppose the Application.

A Respondent can consent to an Order being made, on a “without admissions” basis, which basically means that the Respondent does not accept the matters as alleged in the Application, but consents to a final Order being made. This is an approach frequently adopted in domestic violence court proceedings as it offers a speedy resolution to the matter, but allows the Respondent to clearly advise the court that the allegations are not accepted.

Resolving a matter in this manner means that the court has not been called upon to make any findings of fact (meaning whether the allegations are true or not) regarding the allegations before the court. Making a decision to consent to a Protection Order is not a decision to be made lightly, and legal advice should be sought regarding the particular circumstances of the case.

If the Respondent opposes the making of a Protection Order, the court will list the matter for Trial, and make directions for each party to file Affidavits.

Sometimes further mention dates are required before the Trial to deal with preliminary issues and to confirm compliance with the Trial directions.

If the Applicant fails to attend at any Court event, then the Application can be dismissed.

If the Respondent fails to attend at any Court event, then the DVPO can be made in the absence of the Respondent.

At a Trial of the matter, the court will consider the evidence from both the Applicant and the Respondent, and any witnesses relied upon, to determine whether a DVPO should be made.

After each party, has given evidence the Magistrate will make a decision regarding the following matters:

  1. Was there a relevant relationship between the parties; and
  2. Did the Respondent commit domestic violence against the Aggrieved; and
  3. Is a Protection Order necessary or desirable.

For a Magistrate to make a final Protection Order he/she must be satisfied of the above elements.

When the Magistrates considers whether domestic violence has occurred reference will be made to the definition of domestic violence within the Domestic and Family Violence Protection Act. The definition is broad and includes physical, emotional, psychological, economic abuse, or behaviour that is threatening, coercive or in any way controls or dominates the Aggrieved and causes the Aggrieved to fear for their safety and wellbeing.

What happens if a Domestic Violence Protection Order is made

A DVPO puts limits on the behaviour of the Respondent.

In circumstances where a DVPO is made the Respondent must be of good behaviour and must not commit an act or acts of domestic violence.

If the Respondent fails to do so, he/she may be breach of the Order and can be criminally charged. Further, if an Order contains more restrictive no contact or no approach provisions such provisions must be adhered to otherwise the Respondent is at risk of a criminal charge, and a subsequent criminal conviction.

It is important to be aware that a Domestic Violence Protection Order matter is a civil matter. Accordingly, the making of an Order does not give the Respondent a criminal record nor is the Order noted on a criminal history.

However, in the event a Respondent is charged and convicted with Contravention of Protection Order then it is open to the Court to record a conviction (if the penalty for a Contravention of Protection Order is a term of imprisonment then a conviction must be recorded and the Court does not have a discretion).

Further, the making of a DVPO has consequences for Respondents holding a fire arms licence, and we would encourage you to talk with a Solicitor of our office should this be an issue in your matter.

Domestic violence matters are not necessarily straight forward, and we would encourage people embarking on the process of obtaining or defending a Protection Order to seek legal advice from one of our experienced Solicitors at Preston and Associates. www.prestonandassociates.com.au

Seek Support

There is no shame is seeking support and assistance to address domestic violence issues. Domestic violence is a serious matter and no one should feel unsafe in their intimate or family relationships.

If you are experiencing or using domestic violence in your relationship, there a number of services which can assist and support you.

If you or some you know is experiencing or using domestic violence we encourage you to contact one of the below services.

 

DVConnect 1800 811 811

www.dvconnect.org

Mensline 1800 600 636

www.mensline.org.au

Police 000

Kids Help Line 1800 551800

www.kidshelpline.com.au

Parent Line Qld 1300 30 1300

www.parentline.com.au

Brisbane Domestic Violence Service 3217 2544

www.bdvs.org.au

Caboolture Regional Domestic Violence Service 5498 9533

www.crdvs.org.au

Disclaimer: The contents of our blog and website are not intended to give legal advice. The content provides general information on relevant topics in relation to family and criminal law and other topics of interest. Please note that no reliance should be placed on the information contained in our blog and on our website. We strongly recommend that specific legal advice is sought regarding the circumstances of each case. www.prestonandassociates.com.au