If there has been any form of domestic violence in a relationship, it's not unusual to see applications for a Domestic Violence/Protection Order (DVO), usually with the objective to try to gain an advantage in the family law proceedings. This is often practised in family law disputes involving children.
It is extremely concerning as to the increase in DVOs sought by parties in the midst of family law disputes that are without merit. Yet, a DVO is made, often due to a party consenting to the DVO to avoid dealing with the domestic violence court proceedings, or due to facts or incidents regarding domestic violence being exaggerated, falsified or misrepresented. It undermines the court system and those who are in genuine need of a DVO - which has historically been an excellent resource for cases concerning family violence.
It is absolutely crucial that if a DVO is sought against you that you know your legal rights and the options you can take to appropriately respond.
What Options Do I Have as a Respondent?
There are four different courses of action you can take as a Respondent to a DVO:
- Consent to a DVO being made against you, accepting the allegations;
- Consent to a DVO being made against you on a “without admissions” basis, meaning you don’t accept the allegations;
- Negotiate an undertaking being signed in exchange that the DVO application be withdrawn/dismissed; or
- Contest the DVO application and proceed to a Trial to be determined by a Judge.
Sounds Good - But What Does This Actually Mean?
As the respondent, if you simply consent to the DVO, you are accepting the claims made by the applicant and allegations of domestic violence.
If the DVO is made by consent on this basis, the Court is not required to make any findings or determinations as to the accuracy of the alleged facts or whether the grounds for making the DVO are satisfied.
The facts as set out by the applicant may involve serious allegations of domestic violence against you by the applicant and your children - which could adversely affect the parenting arrangements likely to be ordered by the Court.
In some cases, this can even result in your criminal prosecution.
Consent “Without Admissions”
Another option as a respondent is to consent to a DVO being made, but on a “without admissions” basis.
This means you are consenting to the DVO being made against you, however you do not accept any of the allegations or facts as stated by the applicant to be true.
You may choose this option to avoid a lengthy and costly domestic violence court case. It is often regarded as a ‘quick fix’ option as both parties will gain some satisfaction from the outcome.
The applicant will have successfully taken out the DVO, and, as the respondent, you have not admitted to any of the allegations made against you.
However, if you fail to appear in Court after having been served with a DVO application, the Court may make a DVO against you in your absence. This will not be on a “without admission” basis and can result in serious ramifications against you - and adversely impact on future parenting arrangements.
Whether you consent to a DVO being made against you, either on a “with or without admission” basis, once the DVO is made, the terms are in force immediately and you will either receive a copy of the DVO at Court or in the mail.
Negotiating an Undertaking
A DVO application may be withdrawn only by the party who filed it - either the applicant themselves or the police, if they filed the application on behalf of the applicant.
Another option to resolve domestic violence proceedings is that the applicant may withdraw the DVO application on the grounds that you, as the respondent, agree to sign an Undertaking. An Undertaking is not a Court Order, but rather a signed document (although in some circumstances may be accepted by the Court as an oral Undertaking) which sets out your “promise” to abide by certain conditions and usually reflects that you will be of good behaviour and not commit an act of domestic violence.
The two essential differences between an Undertaking and a DVO are:
- An Undertaking cannot be criminally enforced. If breached, it will not be considered a criminal offence. Whereas if a DVO is breached, it is considered a criminal offence and you may be charged by the police. Although an Undertaking cannot be criminally enforced, it can still be used in Court as evidence at a later date; and
- When commencing family court proceedings, the Initiating Application form requires a copy of all previous Undertakings and DVOs. Although the Court requires an Undertaking to be provided, it is not a factor that must be considered when deciding the parenting arrangements of children as opposed to a DVO - which the Court is required to consider when determining the children’s best interests.
An Undertaking provides parties with a chance to resolve the issues at an early stage, without the emotional and financial costs to both parties of proceeding to a Trial.
Contesting the DVO
If you completely dispute the allegations made in the DVO application and wish to fight a DVO being made against you, then you should contest the application and seek the matter be set down for a Trial.
This will mean both parties will be required to file affidavits, give evidence and be cross-examined in the witness box at the hearing of the Trial.
A Trial means the matter will be determined by a Judge, who will make findings about the facts and alleged domestic violence based on the affidavits and evidence given by the parties in the witness box. The Court will make a decision as to whether a DVO is ‘necessary and desirable’, considering the relevant factors under the Domestic and Family Violence Protection Act 2012.
Legal advice should be sought as to your prospects and the process involved prior to proceeding to a Trial. Court appearances can be a very costly, time-consuming and take an emotional toll on parties, particularly during the process of giving evidence and being cross-examined at Trial.
The Court processes, laws and regulations in place for domestic violence provide the applicant with a more ‘user-friendly’, quicker and easier process. But this can create problems for respondents where applications have been filed that are without merit, vexatious or malicious, or sought for an alterior motive such as to gain an advantage in family law proceedings.
It is critical if you are a respondent to a DVO application that you obtain legal advice as soon as you are served with the application, to ensure you are taking the right steps from the outset for your individual circumstances.
The legal advisor should outline your available options and provide detailed advices as to how the DVO could impact on you in family law matters, including property disputes and future parenting arrangements, as well as the potential impact on the relationship with your children.
You should obtain advice as to the terms of the DVO sought and how the conditions and restrictions may affect you in the context of your family. You should also seek advice as to the potential to breach any conditions which may lead to charges being laid and criminal ramifications.
If you have been served with a DVO, our lawyers would be happy to have a chat with you. Give us a call today.