I have been given a domestic violence notice - What do I do next?

Sometimes the first exposure that a person has with the laws relating to domestic violence is when the police give them a Police Protection Notice or Application for a Protection Order, often within the context of a relationship breakdown.  It is easy to overlook the importance of understanding and addressing the effect of domestic violence allegations and notices.

Some consider that the notice does not apply to them or will not impact them, particularly if they believe their behaviour is fine or they have no intention of committing an act of domestic violence.  However, failing to appreciate the operation and impact of DV laws commonly leads to:

1               inadvertently committing criminal offences – a lack of understanding of domestic violence laws or orders that have taken effect against you is not a defence.  This can result in your arrest, spending time in the watchhouse, incurring legal expense, missing work, being unable to work or hold a firearms license and a criminal history.

2               impacting your family law matter.  A record or allegation of domestic violence will impact how the Family Court views your ability to co-parent and the amount of resources your partner will need from the pool of assets.

3               Unnecessary stress on all the parties to a family law event, including the children.

Every person in society has a responsibility to be aware of and be educated as to the meaning and effect of domestic violence.  With over 54% of family law cases involving at least an allegation of domestic violence it is in your best interest to understand as a participant to understand domestic violence and how it may impact you.

If you are served a notice under the domestic violence legislation then understanding the system becomes essential as this will impact your life and the life of those around you.  This article has important information for you.

If you have not been served a notice or been alleged to have committed domestic violence, then the best protective step you can take is to inform yourself fully about the range of behaviours that can result in domestic violence or similar.

The process of DV notices and protection orders

The law relating domestic violence varies between every state/territory in Australia.  There is no one uniform legislation covering domestic violence.  However, the general process of what occurs after receiving a notice of a domestic violence order will be very similar between every state/territory.

This article will use the terminology and be based on the process of what occurs in Queensland.

1. A notice of a domestic violence order can be given in two ways:

   
   

   1. a Police Protection Notice; or

      
      

   2. an Application for a Protection Order. A Police Protection Notice can only be given by the Police.

   
   

2. An Application for a Protection Order, whilst can be used by the Police to give notice of a domestic violence order, is more commonly used in private applications.  That is, if a person in a relationship believes that their spouse/partner has, or is, committing domestic violence against them, they can complete an Application for a Protection Order and give notice of a domestic violence order to their spouse/partner.

   
   

3. The Police will commonly use a Police Protection Notice, as it immediately imposes conditions on the Respondent.  However, the conditions only come into effect after the Respondent has been served with a copy of the Police Protection Notice.  The Respondent is the person on whom the domestic violence order is sought against.

   
   

4. Generally, the Police Protection Notice will have the condition, “that the Respondent must be of good behaviour towards the Aggrieved and must not commit domestic violence against the aggrieved”.  There may also be conditions on the Police Protection Notice protecting other named people, such as children.  A breach of these conditions by the Respondent, is a breach of the Notice and can lead to criminal charges.

   
   

5. An Application for a Protection Order does not immediately impose any conditions on the Respondent. 

   
   

6. Both the Application for a Protection Order and the Police Protection Notice must be served on the Respondent by the Police.

   
   

7. The Application for a Protection Order and the Police Protection Notice will include a Court date, on which the Respondent must be present.  Generally, the matter will be listed for Court within a few days of the date of Application for a Protection Order and the Police Protection Notice.

   
   

8. If the Respondent fails to appear at Court, a Final Protection Order may be made in their absence.  This is a good reason to ensure that if the police have been contacting you and trying to provide a notice to you that you do not avoid it – accept service so you and your lawyer can start working through the details of the allegation and the next steps.

   
   

9. You do not need to say anything to the police officer about the contents of the notice.  You simply need to receive it.  Do not feel obligated nor say anything about the contents of the document.  Even a denial or courteous comment may be used against you by the police. 

   
   

10. The police officer providing the notice cannot decide to withdraw the notice, even if you provide a compelling case on the spot as to why the notice should not apply.  The opportunity to put your case will occur later.

    
    

11. In our experience, police will not usually engage in conversation beyond stating what the notice is and when the Court date occurs.  If police are inviting you to an interview then it is likely something else – usually an allegation of an offence.  We strongly recommend that you engage a solicitor to organise and attend at the interview in those circumstances.

    
    

12. Be particularly wary of police requests to interview or seeking to meet Friday night or “day before the long weekend”.  In our experience, these are peak times of demand for police resources and sometimes indicate that police have taken a view and intend to arrest or detain you over the weekend.  As it is difficult for you to engage a lawyer or obtain bail over the weekend, it will usually result in many people’s first time detained overnight and is an unpleasant and disruptive experience.

    
    

13. Overall, it is helpful to understand that police have a job to do, issuing and serving many DV notices and often have to exercise caution and discretion on the spot.  The deep consideration of any allegation and opportunity to put your case will occur later.  Don’t prejudice your position by misunderstanding the role police have at this stage of the process.

The Initial Hearing

14. Upon presenting at Court, the Respondent will have three options to deal with their matter:

    
    

    1. Agree with the allegations and consent to a Final Protection Order being made, with the conditions sought in Application for a Protection Order or the Police Protection Notice; or

       
       

    2. Disagree with the allegations and list the matter for Trial, in which case a Magistrate will make a determination whether domestic violence has been committed; or

       
       

    3. Consent to a Final Protection Order without admissions; or

       
       

    4. Commit to an undertaking with the Court that you will be of good behaviour towards the Aggrieved and will not commit domestic violence against them.  This is a good alternative to settle the matter without having a Final Protection Order being made or having the domestic violence allegations heard. However, undertakings can only be done with the consent of the Aggrieved and the Applicant.  In some instances, the Applicant and Aggrieved are the same person.  In other instances, the Applicant is the police.  Whilst an undertaking is not an order, it is promise to the Court and therefore, must be abided by.

15. Consenting to a Final Protection Order without admissions, is often an avenue for Respondents to have their matter finalised, whilst not agreeing to the allegations.  This is particularly important in circumstances where you may have a Family Law matter down the track.  A Family Law Court will not consider a person guilty of domestic violence in circumstances where a person has made no admissions, even though there may be a Final Protection Order against that person.

    
    

16. If for any reason the matter is adjourned and not finalised at the first Court Hearing, the Court may make a Temporary Protection Order, which will remain in effect until the matter can be finalised.  A breach of the Temporary Protection Order by the Respondent, is a breach of the Order and can lead to criminal charges.

It is crucial that you understand the terms of any domestic violence order or notice.  Simply not committing domestic violence is not the only requirement of many orders.  DV orders and notices often require “no contact” or communication at all or even being within a set distance of the other.

Some examples where we have seen an inadvertently breach of an order resulting in charges include:

• a polite response to a text message;

• attending a neighbours’ house; or

• moves back into a home following reconciliation with their partner.

The Trial

17. A Respondent may elect to take his matter to Trial in circumstances where they believe the allegations to be untrue.  However, due to the civil nature of domestic violence orders, Trials are run and decided “on the balance of probabilities” not “beyond reasonable doubt”. 

    
    

18. A Court making a determination on the balance of probability is held to a lesser threshold, than making a determination beyond reasonable doubt.  Essentially, the Magistrate will consider – “is it more likely than not, that domestic violence occurred?”.

    
    

19. It is therefore important to consider whether the Respondent will truly be in a position to disprove the allegations of domestic violence being made against them.

    
    

20. It is for this reason that early involvement of a lawyer to negotiate an undertaking or consenting to a Final Protection Order without making any admissions may result in the best outcome.  If a Respondent chooses these option, it finalises their matter and NO domestic violence allegation has been found against them.  However, consenting without admissions will still result in an order, which may impact job prospects, result (improperly) in future submissions that one has a “history of domestic violence” or the ability to hold a weapons licence.

    
    

All outcomes can be impactful.

21. Please remember that a breach of the Final Protection Order by the Respondent, is a breach of the Order and can lead to criminal charges.  Again, understanding the exact terms of the order cannot be emphasised enough.

It is recommended that once a Respondent is served with Application for a Protection Order or a Police Protection Notice that they immediately seek independent legal advice.

Anyone seeking legal advice to discuss their options can contact Men’s Legal Service on (07) 3439 8874 or send us an email at info@menslegalservice.org.au.

Please note that this article is NOT a substitute for legal advice.  People are advised to obtain independent legal advice, particularly if you receive a notice issued by police officers.