Domestic Violence

Domestic violence orders

The Domestic and Family Violence Protection Act 2012 sets out the laws relevant to domestic violence proceedings. The definition of what constitutes domestic violence is broad, and the standard of proof is low.

Proceedings are civil in nature, and are typically commenced upon the filing of an application for a protection order in the Magistrates Court. The application can be made by a victim of domestic violence (the ‘aggrieved’), or by a person (usually a police officer) on the aggrieved’s behalf (the ‘applicant’).

The application may also nominate other persons (typically children or family members) about whom the aggrieved has safety concerns. These people are referred to as “named persons”.  The alleged perpetrator of domestic violence is known as the ‘respondent’.

When an application for a protection order is made, the proceedings are ‘mentioned’ in court.

From there, several outcomes are possible, including:

• the exchange of undertakings (in lieu of a formal order);
• consenting to a protection order (sometimes on a ‘without admissions’ basis); or
• defending the application and the matter proceeding to a contested hearing.

How do I challenge an application for a protection order?

If a person wants to contest an application for a protection order, the application will need to be listed for a hearing. Importantly, the court has the discretion to impose a temporary protection order pending the outcome of the application for a protection order.

A temporary protection order is similar to a protection order but will exist for a shorter time to protect the aggrieved (and any named persons) up until the date that another order is made; (for example, the granting or dismissal of the application for a protection order).

When a respondent informs the court that he or she wishes to contest the application for a protection order, the court will give directions about the filing of material. The applicant/aggrieved will be directed to file his or her material first, followed by the respondent a few weeks later. The material takes the format of sworn affidavits and supporting evidence.

The hearing then takes place in the Magistrates Court where the Magistrate hears from the applicant/aggrieved as to why a protection order should be imposed.

The aggrieved and the respondent may both be required to give oral evidence and be cross-examined. Sometimes the parties’ witnesses are also required to give evidence. The hearing is conducted in a closed court, meaning it is not open to the public.

After hearing the evidence, the Magistrate will make his or her decision on the application. In doing so, the Magistrate will consider and apply the test as set out in s37 of the  Domestic and Family Violence Protection Act 2012, namely, whether:

1. a relevant relationship exists between the aggrieved and respondent;
2. the respondent has committed domestic violence against the aggrieved; and
3. a protection order is necessary or desirable to protect the aggrieved from domestic violence.

What happens once a protection order is imposed?

If a protection order is made, the respondent will be bound by the conditions of the order for the duration of the order. Typically, orders are in place for five or more years; unless the Magistrate exercises his or her discretion to impose a shorter order.

If the application for the protection order was contested, the respondent has the right to appeal the Magistrate’s decision to impose the order. That appeal must be made within 28 days of the Magistrate’s decision, and it must be lodged in the District Court.

Can an order be changed?

Once a protection order is imposed, the respondent can make an application to the court to vary the order. The length and the conditions of the order can be varied.

The application is a written application, and the respondent will be required to attend court to make oral submissions to a Magistrate about why the application should be granted. If the application is contested, the Magistrate will also hear oral submissions from the aggrieved or the police on behalf of the aggrieved.

Breaches of domestic violence orders

Domestic violence orders include temporary protection orders and final protection orders. Whilst domestic violence orders are not criminal in nature, breaches of those orders are considered a criminal offence and treated very seriously by the courts. A first breach has a maximum penalty of 3 years imprisonment and a subsequent breach (within 5 years) has a 5 year maximum.

You might be surprised at what can constitute a breach, and we are often asked to assist clients who have allegedly committed technical and inadvertent breaches of orders. No matter how ‘technical’ or ‘innocent’ the breach may be, the police can still charge you.

We are also well placed to provide advice to victims of breach offences, and we often liaise with police on behalf of victims to facilitate the charging and prosecution of breach offences.

Why choose us?

The lawyers at Gilshenan &  Luton have expertise in these specialised areas and can provide representation for either the aggrieved or the respondent at any stage of the application for, or defence of, a protection order.

Due to our criminal law experience, we are also well equipped to act on your behalf in the event that you are charged with a breach offence, or if you are a victim of a breach offence. Our office regularly assists and advises other lawyers, in particular family lawyers in relation to allegations of breach against their clients.