Domestic Violence Order Or Apprehended Violence Order Applications
For any respondent, these applications can prove to have consequences as serious as a criminal charge. For example, it is not uncommon for the party seeking an order to want the respondent to be forced out of the family home, or prohibited from contacting the children of the relationship. And a court confronted with such an application to make that type of order can make it on a temporary basis without even hearing from the respondent. And it might then take as long as 6 months before the respondent can oppose such an order at hearing. So, in that situation where would you live? And how would you cope without your children?
Notoriously these types of orders are pursued by a party involved in a property settlement or child custody proceeding in the Family Court. Unscrupulous lawyers will encourage their clients to seek one in order to support, for example, an application for sole custody of the children of the relationship in the Family Court. The allegation will be that the respondent has been domestically violent in front of the children, and corroboration for that is that an application for a domestic violent order was pursued.
At McMillan Criminal Law we have seen these and other misuses of such applications and are quite prepared to deal with them. An immediate and comprehensive response to any such application has proven to be the most effective remedy. There is no room in them for complacently allowing your grievances to be aired for the first time in a final hearing.
One of the primary difficulties experienced in Queensland is that police are often the instigators of the application, on behalf of an aggrieved. This often occurs when police are called out to an argument which has been overheard by neighbours, or police are called by someone in the heat of the moment. In this situation, it is the police, not the aggrieved, who controls whether the matter proceeds or not. It is our experience that police will not withdraw their applications once proceedings are commenced. In fact, we are aware of internal directions within the Police Prosecutions Corps to this effect. This means that respondents to these police applications are left with two options: consent to an order being made on a without admissions basis for 5 years, or contest the matter at a hearing. Through our experience and careful preparation in these sorts of matters, we have had many police applications dismissed by the court at the hearing.
Breaches Of Domestic Violence Or Apprehended Violence Orders
In fact, the law in relation to bail for domestic violence matters has recently been altered to make charges involving certain elements of alleged domestic violence offences which disentitle the defendant to a grant of bail. That very fact alone means that matters like this should not be handled by Family Lawyers, but by a competent and experienced criminal lawyer because only a criminal lawyer will have had any experience at all with bail applications.
In both States, periods of actual imprisonment are now routinely imposed for breaches of these orders or offending involving an allegation of domestic violence. In New South Wales section 14(4) of the Crimes (Domestic and Personal Violence) Act 2007 states that if you are charged with breaching an Apprehended Violence Order and you are alleged to have used violence when breaching that order, imprisonment must be imposed - regardless of whether or not its your first time before the courts. In Queensland, in the case of R v Fairbrother  QCA 105 the Court of Appeal has said:
"Perpetrators of serious acts of domestic violence must know that society will not tolerate such behaviour. They can expect the courts to impose significant sentences of imprisonment."
What these statements mean is that unless the case can be shown as exceptional there is a real possibility that imprisonment will be imposed.
When faced with this, our approach at McMillan Criminal Law is to assiduously look for the feature of the case that pulls it into that category. That may be evidence the victim had been violent previously toward the offender, or that the violence alleged cannot be made out on the evidence, or that significant remedial steps have been taken already by the offender. This careful examination of the case differentiates McMillan Criminal Law from our competitors, and maximises our clients prospects of avoiding custody.
The Insanity Of What Now Constitues Domestic Violence
In the recent appeal of AMB v TMP  QDC 100 the court was confronted with a question about the lawfulness of a Magistrates view that an aggrieved who had traded mutual insults had suffered emotional abuse and so needed an order made against her partner prohibiting him from insulting her. That question was made all the more important when the Magistrate found, prior to making an order in her favour, that the aggrieved had lied about very substantial parts of her evidence.
Specifically, the aggrieved complained that the following text constituted a form of emotional abuse:
“And stop putting nappies on her. I creates an issue when you don’t clean her after. And not like she hasn’t been able to for a couple of years. It’s you….you haven’t even told her to let it go when she needs to…don’t get how you as a woman don’t know how to clean your private parts. But then again it might explain something.”
The Magistrate agreed.
The experienced appeal judge in a very reasoned decision confirmed that his job was to see if the Magistrate fell into detectable error, not:
“..not whether he would have made the same findings as the Magistrate on the material.”
In the authors view, this is very discrete way of saying that in His Honour’s view, the conduct complained of occurring in the context of a relationship of mutually delivered insults, would not have constituted domestic violence.
The author also entertains real concerns about what a person like the aggrieved (who brings such frivolous complaints to a court seeking an order against her partner) would do with an order when she has one.
This case should serve as a reminder to all of those who are targeted by a domestic violence order to vigorously defend such allegations in order to prevent a prohibited order falling into the hands of someone who might abuse it.
Speak to an experienced Domestic Violence Lawyer
Don't delay, you need to speak with an experienced criminal lawyer regarding domestic violence matters as soon as possible to protect your rights. Contact McMillan Criminal Law today. Call or book an appointment for our Brisbane or the Gold Coast offices.