Domestic violence for respondents
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Who can get a domestic violence order?
A person can only apply for a domestic violence protection order against you if you are:
- a spouse or former spouse. This means:
- people who are or have been married
- people who are or have been in a de facto relationship (including same sex de facto relationships)
- you are both parents of the same child (including an unborn child)
- a relative by blood or marriage:
- including relatives of a spouse, whether married or not. This can include an extended definition of relative used by some cultural groups such as people from Aboriginal and Torres Strait Islander backgrounds
- this does not include children under the age of 18 years
- in an intimate personal relationship with them. An intimate personal relationship is:
- if you are engaged to be married or
- a dating relationship where your lives are or were enmeshed such that the actions of one affects the actions or life of the other, whether or not there is a sexual relationship
- in an informal care relationship with you where the other person is dependant upon you to help them with an activity of daily living and it is not a professional paid care service.
If one of these relationships does not exist, a person may be able to take out a peace and good behaviour order against you.
The police can also apply for a domestic violence order on behalf of someone. The police are then the applicant and the person who seeks the order is called 'the aggrieved'.
What is domestic violence?
You have committed domestic violence if you have:
- made threats to injure a person you have a relationship with or damage their property
- been physically violent towards them (including violence that does not cause actual injury like pushing, shoving, holding down etc)
- damaged their property (including animals)
- behaved indecently towards them (eg coercive sexual behaviour, forced sexual intercourse)
- intimidated or harassed them, which may include:
- persistent phone calls
- verbal abuse
- stalking
- financial abuse eg refusing to provide money for food and necessities
- social abuse eg isolating a person from family and friends
- psychological abuse eg constant put downs or regularly threaten to withdraw informal care from an aged parent if they don't sign over their fortnightly pension.
I have been served with a domestic violence order application. What now?
The application you've received will tell you when and where you have to appear at court. Your first court appearance will be a mention.
At a mention the magistrate will ask you to respond to the application, and tell the court which of the options listed below you want to choose:
- Oppose the orders being sought by the applicant. The proceedings will then be adjourned to a new date in four to six weeks time for a hearing to take place. At a hearing you give your version of events. You could also be cross examined by the other party's legal representative. The other party, will also be required to give evidence and can be cross examined by you or your legal representative. If you are preparing for a hearing you should get legal advice.
- Ask for an adjournment. You might choose this option so you have more time to get legal advice. If the adjournment is granted, the matter will be set down for another mention in two or more weeks time.
- Consent to an order being made. This is where you tell the court you are willing to let the applicant have the order. This kind of order is called a consent order. If you consent to the order you can negotiate with the applicant's legal representative or the magistrate about what the order should contain.
- Consent to the order without making any admissions. This is where you tell the court you do not admit to the accusations in the application but you are willing to let the applicant have the order. Some courts may not accept consent on this basis.
- Do not attend the mention. The court could make an order in your absence and you won't have an opportunity to tell your side of the story. Alternatively, the magistrate might decide to adjourn the hearing until another date and you will be expected to come to court at that time.
You should be aware that the fact that there is a domestic violence order is likely to be raised in any other court proceedings about the children. You should get legal advice about the impact of a domestic violence order before deciding whether to consent to the order.
An order has been made against me. What now?
A domestic violence protection order normally lasts up to two years. The magistrate will decide how long the order is to remain in force.
A domestic violence order is not a criminal matter, the hearing is private. It becomes a criminal offence if you breach a protection order (including any temporary orders which may be made). If you are found guilty of breaching the protection order, you could face a fine and/or a term of imprisonment.
You can apply to the court at a later date to have it changed (varied) or cancelled (revoked). This means it has to go before the magistrate again. If the person who holds the order (or the police officer if the police made the original application) does not consent at the mention to the cancellation or variation of the order the matter will have to be adjourned for a hearing.
You also have the right to appeal to the district court against the order. A notice of appeal form is available from the magistrates court but must be lodged with the district court. It is best to get legal advice to do this.