Unfortunately domestic violence, in its many forms, is a part of many relationships.
Whilst historically a taboo topic where the majority of cases went unreported and spouses were left to suffer through the abuse in silence, the current social climate encourages the early reporting of incidents.
Domestic Violence takes many forms including:
- physical abuse or assault;
- mental or verbal abuse;
- economic abuse, including withholding money from a spouse; and
- making threats against a spouse to do any of the above.
If able to establish to the court they have been the victim of domestic violence, an aggrieved person is entitled to apply for orders from the court for their protection.
The orders the court can make for a person’s protection include:
- ouster orders, preventing a respondent from residing or continuing to reside in a property;
- non-contact orders, preventing a respondent from making any contact with an aggrieved person, including by social media;
- restriction orders preventing a respondent from coming within a certain distance of an aggrieved person, their home, workplace or other location they frequent; and
- orders protecting children who have been the victim of domestic violence themselves or been exposed to domestic violence incidents.
Temporary orders can be made by the court in the absence of a respondent if the court consider the risk to the aggrieved requires an urgent order to be made.
Once a temporary order is made, or an application filed with the court, a respondent is then served with copies of the documents and then has the right to defend the application, although if a temporary order is made, it will usually remain in place until a final hearing can occur.
Once orders have been made and the respondent served with the order, if a further act of domestic violence occurs or there is a breach of the conditions of the order, the respondent will be subject to criminal prosecution by the police.
At a final hearing, a Magistrate is given the opportunity to hear evidence from both parties and any witnesses in Affidavit form and the evidence is able to be tested by the cross examination of each of the witnesses by the other party’s legal representatives.
After hearing and considering the evidence at a final hearing, the court will then either make an order on a final basis for up to five (5) years or dismiss the application if the court are not of the view the circumstances of the case warrant the making of a final protection order.
There are many elements to a domestic violence case and the evidence must be carefully presented to the court by both sides, so it is advisable to consult a lawyer before proceeding to final hearing, even where the police have brought the application on behalf of the aggrieved victim.
Whilst the domestic violence legislation exists to protect people from ongoing abuse from their current or former partner, unfortunately some parties (and indeed their lawyers) will use a domestic violence application as a tactical move in a parenting or property dispute, for example to prevent a parent from spending time with their children by way of a non contact order or in securing accommodation to the exclusion of their former spouse by way of an ouster order.
This abuse of process is disappointingly a common occurrence and takes valuable resources from the courts and police in an already under resourced area. Where such applications are brought, they are most likely dismissed at a final hearing and, in some circumstances even before a final hearing.
We have experience in representing both aggrieved victims, respondents and third party witnesses or named persons in domestic violence matters. Please make contact with our office to further discuss how we can assist you in the domestic violence court process.