In New South Wales, these orders are called Apprehended Violence Orders, while in Queensland they are Protection Orders.
Contact Michael McMillan immediately on (07) 5619 6860 or 0409 273 430. Alternatively, you can send an enquiry online to discuss your criminal matter.
Protection 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 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?
There have also been occasions when Magistrates have made orders removing a person from their home as a method of punishing him. The case of PRH v LPL [2021] QDC 17 is clearly a frightening example of such a breach of the law.
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.
In a recent case in which I was involved called KAL v DJL [2022] QDC 152, there was no evidence that the pending Family Court proceedings were likely to cause my client to commit an act of domestic violence against his ex wife, but the Magistrate thought that the stresses of the pending Family Court proceedings were sufficient to warrant her making a Protection Order against him. My view was that this approach was wrong, and the appellate court agreed.
Don’t think for a second that you can adequately sort it out yourself or that refusing to turn up to court will help. The case of STO v Queensland Police Service & Anor [2020] QDC 139 demonstrates that Prosecutors and Magistrates have in the past attempted to deal with matters anyway they want, even if you are absent.
Breaches of domestic violence or apprehended violence orders
It is now far more difficult to get bail than ever before if you are charged with an offence alleging any domestic violence. 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 Queensland and New South Wales, periods of actual imprisonment are now routinely imposed for breaches of these orders or offending involving an allegation of domestic violence. 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 [2005] QCA 105, the Court of Appeal 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 if the breach is a serious one.
Frighteningly, the most recent publication by the Judicial Commission of New South Wales regarding sentencing trends confirms that over half of all domestic violence offenders were sentenced to full-time imprisonment. Likewise, in Queensland, Sentencing Information Service statistics reveal that if you breach a Domestic Violence Order in circumstances where you have previously been convicted of that, the most likely penalty by far is actual imprisonment.
Above: Contravention of domestic violence order – previous domestic violence offence – Sentences from Nov 2017 to Oct 2021
With this, my view of the best approach is to carefully 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 – distinguishing your case from the ordinary is your only prospect of avoiding custody.
The insanity of what now constitutes domestic violence
In the recent appeal of AMB v TMP [2019] 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. It 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 whether he would have made the same findings as the Magistrate on the material.”
In my view, this is a very discrete way of saying that in the court’s view, the conduct complained of occurring in the context of a relationship of mutually delivered insults would not have constituted domestic violence.
The case also gives rise to 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.
It 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.
What you need is a thorough and comprehensive defence to the allegations that an order is required to be made against you. The case of RC v MM [2018] QDC 276 is another similar case in which I was involved and to successfully oppose the order sought, I had to meticulously pull apart the applicant’s assertions (question by question) until she finally conceded that she was not being truthful.
This is just a smattering of issues to consider when navigating this very contentious area of law. For any questions you might have about these or other matters involving domestic violence or apprehended violence allegations, please don’t hesitate to contact me.