Whether you have been the victim of domestic violence, or have been accused of perpetrating domestic violence, Cairns Divorce Lawyers can help you navigate the legal processes involved and assist you to get the result you need.
If you also have a family law matter, either in regards to parenting arrangements for your children, or even a property settlement, it is important to understand how domestic violence is dealt with in those circumstances as well and the experienced lawyers at Cairns Divorce Lawyers can help you.
If someone has alleged that you have been violent towards them, then this may have consequences in relation to custody (parenting) of children.
This article is about domestic violence orders, or “Protection Orders”, which are not made by the family law courts, but are made by the Queensland Magistrates Court.
Protection Orders are a creature of civil law, but have the potential for criminal consequences if a breach of a Protection Order occurs.
If you have an Order made against you, even without breaching the Order, there may be other consequences that you should be aware of.
For example, a Protection Order may affect a Government Blue Card, Weapons and Explosives Licenses as well as living and working overseas.
If someone has applied to have a Protection Order made against you, it is very important that you obtain legal advice prior to contesting the application, or consenting (agreeing) to a Protection Order being made.
Protection Orders are made under the Domestic and Family Violence Protection Act (“the Act”). An Application under the Act can be made between two parties who have a relevant relationship, which includes:
An intimate personal relationship (married, de facto, registered relationship, engaged, dating)
A family relationship (a parent, former parent, child, other relative)
An informal care relationship (where one person is dependent on the other person to help in relation to their activities of daily living).
The person alleging that domestic violence has occurred, is known as “the Aggrieved”.
The perpetrator is known as “the Respondent”.
Relatives and associated people of the Aggrieved, including children, may be protected by a Protection Order and they are known as “named persons”.
An Application can be made by the Aggrieved, or on behalf of the aggrieved, including by the Police.
A wide range of behaviour and conduct is now covered by the Act, and can amount to domestic violence. This includes:
Physical or sexual abuse;
Emotional or psychological abuse;
Threatening or coercive behaviour; and any other behaviour which controls or dominates a person, or causes that person to fear for their safety or well-being or that of someone else.
If you find yourself in circumstances where you need to make an Application for a Protection Order you can obtain a copy of the Application from your local Magistrates Court or police station, private lawyer or local domestic violence services and community legal centres.
You should include as much detail as possible in the Application and describe each domestic violence incident in detail.
It is also important that you include how each incident made you feel (such as threatened, or scared). You will also need to tell the Court, in the Application, if you are wanting the Court to put any extra conditions in the Protection Order. A “standard” Protection Order states that the Respondent is to be of good behaviour and not commit domestic violence against the aggrieved, or named person.
However, it may also be necessary for the Order to direct that the Respondent be removed from a particular property, or restrained from attending your home, workplace, or even children’s education facilities such as schools.
Once an Application is lodged at the registry of your local Magistrates Court, the Application will be served on the Respondent by the Police.
If you are an aggrieved in an Application, you do not need to attend Court and can have a solicitor represent you at the first mention. If the applicant is the Police, a police prosecutor can represent you.
Usually, the first time the Application is before the Court will be for a “mention”. If you have a solicitor representing you, it is usual for your representative to be at Court and it is possible that your solicitor could negotiate with the Respondent, or their solicitor, and you could reach agreement as to what conditions are suitable.
If you are the Respondent, you can consent to the Protection Order being made on a final basis at the mention.
The usual terms are for a Protection Order to extend for a period of two years.
It is extremely important that you understand the consequences of agreeing to a Protection Order before you do so.
Your solicitor will discuss with the possibility of you giving an Undertaking (promise) to the Court that you will be of good behaviour and not commit domestic violence against the aggrieved.
These undertakings can be made without admissions (meaning that you do not admit to the allegations made against you).
However, the Aggrieved and Applicant will need to agree that the Application be resolved in this way.
If the Respondent does not consent to a Protection Order being made, and if there is no agreement in relation to the Respondent entering into an Undertaking, the Respondent can ask for an adjournment to obtain legal advice.
The matter will also be adjourned if the Respondent has not been served with the Application yet.
Usually, a Temporary Protection Order will be made as well.
If the Respondent is going to contest the Application, the Magistrate will list the Application for a Hearing, and direct both parties to file and serve affidavits (statements) which will contain the evidence that they wish to rely upon at the Hearing.
At the Hearing, the Court needs to determine, on a balance of probabilities (not beyond reasonable doubt) that domestic violence has occurred, and that it is necessary and desirable for a Protection Order to be made.
There are Rules of the Court, and rules of evidence that must be considered at the Hearing and as such both a Respondent and an Aggrieved may feel more comfortable having benefit of a solicitor being present.
The Magistrate can, and usually does, make “findings of fact” during these Hearings.
These findings of fact can have consequences in relation to any other Court matters, especially parenting proceedings in the family law courts.
Call Cairns Divorce Lawyers on 07 4052 0700 to meet with an experienced Family Lawyer to discuss any domestic violence you have experienced, or alternatively if someone has made allegations of domestic violence against you.
If you need urgent help, call the police on 000
1800 600 636
1800 811 811
Kids Help Line
800 55 1800
13 11 14