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February 20, 2015

Uncovering domestic violence; the respondent’s perspective

by dankrogers

Ms Quentin Bryce is currently heading a State based taskforce into the responses to domestic violence. She is a remarkable woman committed to an important cause. Everyone would agree that domestic violence is a large and whole of community problem. However, as a legal representative for many respondents (or persons accused of domestic violence), I am acutely aware that the rights and liberties of individuals cannot be ignored as we tackle the problem of domestic violence. This week I presented at the Queensland Law Society on domestic violence laws. Below is a brief overview of the key points I sought to convey from the perspective of a criminal defence lawyer.

It is sometimes said, by practitioners, court support and police, that the making of a DV Order is no big deal as it is a civil order; rather than a criminal order. I don’t share this view. In RMR v Sinclair [2012] QDC 204 at [13], His Honour Judge Deveraux SC remarked that; “[t]he making of a [Protection] order is a serious matter. Orders should not be made lightly. Breaches involve, as the learned Magistrate said, community as well as personal concerns.”

A DV Order can clearly impact upon a person’s civil liberties. For example, restricting them to go certain places, see certain people, including their children, and generally their whole living situation and home environment. These are all significant matters.

For a DV order to be made, the following must be established;
a. A relevant relationship exists between the aggrieved and the respondent.
b. The respondent committed an act of DV against the aggrieved; and the test is on the balance of probabilities (civil order)
c. It is necessary and desirable to protect the aggrieved from DV

Having an order in place against a client makes them extremely vulnerable to an allegation by a disgruntled spouse. In my experience, if police receive a complaint from someone, and in the course of that complaint become aware of the existence of an Order, they are more prepared to act on the complaint and charge a person than they would otherwise be. This is not a criticism of police; their response is understandable. However, respondents are extremely vulnerable to allegations which often lack supporting evidence. Being charged with a breach of a DVO is no small matter. To contest an allegation involves a fairly protracted criminal proceeding which may involve a summary trial before a Magistrate. If convicted after trial or on a plea, a client can face the real risk of a custodial sentence.

So, before you give advice to a client to consent to an order, take your time – don’t be tempted to resolve it quickly. Costs considerations for many people weigh in favour of a quick resolution. However, this should not dictate what are serious matters with serious consequences. Before deciding whether to defend or consent to an order, good legal advice is paramount. It is important to obtain all information and relevant material from clients, including their version of what happened, their personal circumstances, and whether they currently have any family law related matters which often drive these applications.

There has been a substantial rise in DV Applications since the 2006 reforms to the Family Law Act (1975). Section 61DA introduced a presumption of ‘equal shared parental responsibility’- this presumption does not apply where a parent has engaged in family violence. The section 61DA implications and the rise in DV Applications evidences that applicants could be making DV orders strategically if they have child related or other matters in the Family Court. This is certainly my experience in the past ten years. An order could also have an effect on property settlement, child support and spouse maintenance especially if the domestic violence is of an economic nature. There is a clear encouragement for parties to present evidence including the transcripts of DV hearings to family law decision makers.

Increasingly, the police are bringing applications on behalf of persons particularly where there has been a call for police assistance after a dispute. In these applications, the wishes of the aggrieved are often secondary to a general policy of police not dropping these applications. In this instance it would be unwise not to defend an application, where neither party wants an order. Further, the proceedings can eliminate any chance of parties working through their issues collaboratively.

Where the police are involved, you also need to be very alert to the risk of criminal charges being laid. Often clients face a criminal charge and an application by the police for an order. Alternatively, it is a police application which contains criminal allegations. Here, you need to tread carefully in order to minimise the risk of the criminal complaints, contained within the application, becoming criminal charges. There is sometimes here a good reason to consent to an order if there is evidence of criminality and you want to minimise the risk that it turns into criminal charges. If there is any hint of a criminal allegation, within the material, there is good reason to contact a criminal lawyer.

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