Domestic Violence Proceedings

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RESPONDING TO AN APPLICATION

Quality legal advice is important when responding to an application for a domestic violence order.

Decisions and actions taken from the very start can make all the difference to the outcome.

The right strategy will depend on the circumstances of the case and your priorities.

What is the effect of a domestic violence order?

The imposition of a domestic violence order can be damaging.  The conditions of an order can prevent or limit a relationship with children, exclude a person from their home or impact employment.  In other cases there is little to no impact.

A domestic violence order is not like a criminal conviction.  A domestic violence order is a form of restraining order.  However, a breach of an order, if proved, is a criminal offence that can attract severe penalties including imprisonment.

What are the options?

The options if you are served with an application for domestic violence order include:

  1. Opposing the application. The case will proceed to a hearing of the evidence before a Magistrate.
  1. Negotiating with the other side to settle the matter.
  1. Consenting to the order without admissions.

These options, the law and process are addressed in greater detail below.

Opposing an Application

It is an unfortunate reality that some people abuse the domestic violence system for their own purposes when it is so important to protect those in actual need.  There is a well established process to resist an application.

If an application is opposed the Court can only make an order after considering all the evidence at a hearing.

Evidence in domestic violence proceedings is given by affidavit, a written statement the witness swears is true.  Affidavits are filed and served on the other side before the hearing.  The witness must attend the hearing so they can be cross-examined about their statement.

There are standard directions (orders) the Court will make about the filing of evidence and preparation for a hearing.  The standard directions include orders that:

  1. The applicant file all their evidence in affidavit form.
  1. The respondent later file their evidence in affidavit form.

Negotiations

It may be possible to persuade the applicant to withdraw the application.  This is often done be agreeing to enter an informal undertaking instead of a Court making an order.

Negotiations can also focus on the appropriate conditions if you are considering agreeing to an order or the application is likely to succeed because of the strength of the evidence.

An important note about police applications.  There is usually no point in seeking to negotiate with police about a domestic violence application.  Police have a policy of leaving the determination of an application to the Court.  Police will not consider withdrawing an application unless confronted with overwhelming evidence and even then, often still proceed.

Good strategy recognises reality.  In most cases attempting to negotiate with police is a poor strategy.

Consent without Admissions

The law allows a person to consent, agree to the making of an order, without admitting any of the allegations made in the application.

You should never consent to an order without first understanding and if necessary, negotiating the conditions.  Once you agree to an order it is more difficult to argue about the conditions.

Remember, it is a criminal offence to breach an order.  The offence can result in serious penalties including imprisonment and a criminal conviction if proved.  If you consent to an order it is very important to comply with the conditions.

The Parties

The person applying for an order is called the applicant.

The person against whom an order is sought is called the respondent.

The person an order is intended to protect is called the aggrieved.

A person can make their own application privately.  They are the applicant and the aggrieved.

If the police apply for an order they are the applicant and the person for whom the order is sought is the aggrieved.

The onus and standard of proof

The applicant is required to prove the necessary facts that establish the need for a domestic violence order.

Proof is to the civil standard, the balance of probabilities.  This means more likely than not.  The law requires better evidence the more serious the allegation.

The Test

The Court can only make an order if the legal test is satisfied.  The evidence must prove that:

  1. There is or was a relevant relationship.
  1. There was an act of domestic violence.
  1. That a domestic violence order is necessary or desirable.

A Relevant Relationship

Orders only apply between people who share a defined type of relationship including a spousal relationship, an intimate relationship or family relationship.  A relevant relationship does not include a:

  1. Neighbour.
  1. Work colleague.
  1. Tinder date.

The Court has no power to make a domestic violence order in the absence of a relevant relationship irrespective of the conduct proved on the evidence.

The applicant must prove a relevant relationship.

Learn more about domestic relationships

Act of Domestic Violence

Domestic violence has a specific legal definition.  The definition is broad and covers a wide range of conduct including violence to the person and property, emotional abuse and economic abuse.

This part of the inquiry looks at what has happened in the past.  More specifically what the evidence proves happened in the past or fails to prove.

The Court has no power to make an order unless previous acts of domestic violence are proved.

Learn about the legal definition of domestic violence

Necessary or Desirable

The Court will only consider this issue if past domestic violence is proved.  Past domestic violence will not automatically result in the court making an order.

The Court must consider whether an order is necessary or desirable to protect a person from future domestic violence.  That involves deciding the risk of further domestic violence.  There are many factors that inform this consideration.

Examples in which a Court may find an order is not necessary or desirable include:

  1. Months or more passing after a single event.
  1. The parties no longer residing together when all past events occurred in that context.
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