Unfortunately, it is not unusual for Domestic and Family Violence matters to interweave with parenting and property disputes. It is crucial that you and your family are protected so obtaining competent advice about your options should be a priority. Dealing with a Domestic Violence Order Application or charge can be very stressful and using a lawyer can assist to obtain the best outcome.
What is a Domestic Violence Order?
The Domestic and Family Violence Act 2012 (QLD) provides protection for victims of domestic and family violence in Queensland and each state or territory has their own legislation. There are many similarities and differences between the law in each legislation so it is important to understand what constitutes domestic violence in the state relevant to you. When considering whether to make a Domestic Violence Order (DVO), the court looks at a few matters:
– Whether there is a relevant relationship;
– Whether there has been an act of domestic violence; and
– Whether it is necessary or desirable to make an order.
The definition of domestic violence is very broad and encompasses physical, sexual, emotional, psychological, verbal and financial abuse. This includes behaviour that is threatening, coercive, controlling or makes the victim fear for their or someone else’s safety. Exposing children to domestic violence is also covered under the legislation.
If there is a DVO in place that stops two parties from having contact then they are unable to communicate with one another to resolve any parenting or property disputes. However, the legislation provides that a legal representative is able to contact the other party even if there is a DVO in place preventing contact between them in order to resolve these disputes.
The jurisdiction for DVO matters is the Magistrates Court and so applications should be lodged in the court local to the parties. Domestic Violence matters can also be heard in the District Court on appeal or some contravention charges can be heard in a higher court in certain circumstances.
What should I do if I need protection?
If you are in need of protection, you are able to take out a Domestic Violence Order yourself or request that a police officer file an application for you. You will then be called the ‘Aggrieved’ in the application. There are several different conditions that can be placed on a DVO, such as a requirement to be of good behaviour or requiring a person to not attend your home or workplace. You need to consider what conditions you or your children need to be safe and explain to the court why you believe those restrictions are necessary. If you require urgent protection, you can apply for a temporary domestic violence order until the order is made on a final basis.
It can be daunting considering taking out an application which is why there are options for you to have the support of others in both preparing and filing the application and in the courtroom. The process can sometimes take many months and several court appearances before the application is finalised so it is important that you have the support that you need throughout that process.
What can I do if someone has taken out a DVO against me?
If you are served with a Domestic Violence Order, you then become the ‘Respondent’ in that application. The application may be taken out by the police, even if the Aggrieved does not wish them to so, or the Aggrieved can take out the application themselves. It is likely that a temporary domestic violence order will be made at the beginning of the process which will remain in place until the matter is finalised. It is important that you read the conditions of the DVO very carefully because if you do not abide by those conditions then you may be subject to criminal breach charges.
Your options when being served with a DVO are to contest the order (list your matter for trial) or consent without admission to the order (accept the order). It is possible to negotiate the conditions and the duration of the order depending on the circumstances of the case. The standard duration for an order is 5 years but this can be higher or lower. It is also possible to adjourn your matter (list is for another date) in order to undertake preparations (such as attending the Men’s Behavioural Change Program) which may assist your final outcome.
You have several options of how to proceed when you are served with a DVO and you need to make sure that you have received proper advice about what each of those options mean. Simply agreeing to an order without understanding what the ramifications are can seriously impact any proceedings in the future relating to parenting and property.
What should I do if I am charged with breaching a DVO or a domestic violence offence?
A contravention of a Domestic Violence Order is a criminal offence and is punishable by a a hefty fine or a maximum 3 years imprisonment, or 5 years if there has been a previous offence. Being convicted of a breach of DVO can seriously impact parenting proceedings and make it very difficult to continue in a co-parenting situation. When you plead guilty to a breach or domestic violence offence, the court has the power to amend or extend the DVO, even if neither party wants the amendment.
You are able to plead guilty to the charge, contest the charge or attempt to negotiate the charge. When you are charged with contravening a DVO, the police have control of the proceedings so even if the aggrieved does not want you to be charged, it will be up to the police whether they continue with the proceedings. This is the same for domestic violence offences such as wilful damage, common assault, assault occasioning bodily harm and sexual assault. A conviction for a domestic violence offence will have negative consequences on any parenting proceedings so it is extremely important that you obtain comprehensive legal advice about how to deal with your charge.
How We Can Help
Clarity Family Law Solutions have many years experience in the area of Domestic and Family Violence and have spent thousands of hours in court dealing with applications, breach charges and domestic violence offences. Our aim is to simplify the law and provide clarity about your options and the process. With our skill and knowledge we can quickly provide expert advice on your matter during an initial consultation so you can decide on your next steps. We are proficient in discovering alternative solutions to court and can assist in negotiating both DVOs, breach and criminal charges. If you need someone to help guide you through the process and represent you in court, we regularly appear in the specialist Domestic Violence courts across Queensland and New South Wales.
Contact us for more information or for a free no obligation legal advice session.