Clarity Law

An arrest warrant is a warrant that is either applied for and obtained by the police or ordered by a justice (including a Justice of the Peace, Magistrate, Judge or Justice). It gives a member of the police the authority to detain the named person for the purpose of questioning or to charge a person with an offence.

If you have been arrested by the police for a fail to appear in court, then you are likely to be detained until you can be brought before a magistrate at the next available opportunity.

How do I know if a warrant has been issued?

Unfortunately, you generally will not know that an arrest warrant has been issued until you receive the knock on the door to execute the warrant or are pulled over by police and detained.

You may have some knowledge if an arrest warrant has been issued. If you realise you have missed a court date, then you will likely have a fail to attend and the Court more than likely has issued a warrant for your arrest. If this is the case, do not wait to be arrested, call a criminal lawyer who can give you advice on surrendering to the court.

What do I do if an arrest warrant is executed?

If the police execute an arrest warrant on you, you must remain calm and comply with the directions of the police officers. You do not have to say anything to them other than give your ‘identifying particulars’, however you need to follow their lawful directions – such as being fingerprinted or escorted back to the police station with them.

If you resist arrest or obstruct the police in the execution of a lawful arrest police can charge you with an offence.

It is best to comply with the execution of the warrant and engage with a criminal defence lawyer once you have been granted watchhouse bail or require a bail application in the Magistrates Court.

If you have been arrested, you still have rights. Steven Brough our founder has written an excellent article on what to do if you have been arrested here. Put simply, you have a right to silence but you are required to give your name, address and date of birth. It is the default position of most criminal defence lawyers that you do not participate in an electronic record of interview. If you have been asked to participate in an electronic record of interview, you may contact our office for advice.

What can I do if I think a warrant has been issued but before I’ve been arrested?

If you are going to surrender yourself to the court as the court has issued a warrant for your arrest, it is best to do this first thing in the morning as, if you attend late in the afternoon, you may be kept in the watchhouse overnight until the police and court can process you and allocate you a new court date. There is of course the risk that the police could arrest you if you wait and take you to the watchhouse overnight anyway.

You surrender yourself by appearing at the registry of the court you were allocated to attend. There you advise them that you missed your court date and need to surrender yourself. As both the court house and the Police are involved in the process it can be a lengthy period, taking on average 1-2 hours.

If you engage a lawyer to surrender you to the court, the process remains largely the same, with the exception that a lawyer will arrange with the court and police for the file to be brought before the court and can assist in providing an explanation as to why you failed to attend court.

We have a full article on what to do if you have missed your court date.

What can a lawyer do for me if a warrant is issued?

In short, with the exception of surrendering you to the court, there is not much a lawyer can do to stop a warrant being executed – that is not our role – if an arrest warrant is executed on you, you are within your rights to call a lawyer to get advice. A lawyer can be in attendance with you while you are being questioned by police however a lawyer becomes more and more relevant in the aftermath – whether that is helping you defend a charge or make a plea of guilty.

Conclusion

This article is by no means a comprehensive guide to arrest warrant and what you need to do when one has been issued. They are complex and powerful instruments which police utilise in the execution of their duties. A lawyer will become most relevant for you in the aftermath of the execution of a warrant, however your conduct during the execution will set the stage for that aftermath. Anything said during an interview can and will be used against you in court.

How do I get more information or engage Clarity Law to act for me? 

If you want to engage us or just need further information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you
2. Visit our website at www.claritylaw.com.au 
3. Book a time for us to call you
4. Call us on 1300 952 255 seven days a week, 7am to 7pm
5. Email our firms founder This email address is being protected from spambots. You need JavaScript enabled to view it.

If you have missed a court date there will more than likely be a warrant out for your arrest.

If you believe that you may have a warrant issued for your arrest, you can contact the court and check and if a warrant was issued then surrender yourself to the court. Do not wait to be arrested.

If you are arrested, then you will likely face a charge of fail to appear in accordance with an undertaking (if you were on bail) which likely will trigger the revocation of your bail and put you in a ‘show cause’ position.

Surrendering yourself to the court will result in a better outcome than if you were arrested and brought before the court.

How do I surrender?

If you are going to surrender yourself. It is best to do this first thing in the morning as, if you attend late in the afternoon, you may be kept in the watchhouse overnight until the police and court can process you and allocate you a new court date. There is of course the risk that the police could arrest you if you wait and take you to the watchhouse overnight anyway.

You surrender yourself by appearing at the registry of the court. There you advise them that you missed your court date and need to surrender yourself. As both the court house and the Police are involved in the process it can be a lengthy period, taking on average 1-2 hours for your file to be brought to the attention of the court. The court may wait until it has dealt with the represented matters first, and then the unrepresented matters.

The court will want to hear your reasons for not appearing in court, and will ask you what you want to do with your matter. The court will want to know if you are pleading guilty, wanting to adjourn the matter for legal advice or challenge the offence.

There is no requirement to surrender to the court that has issued the warrant, this is clearly expressed in the Police Powers and Responsibilities Act 2000, section 389(4). This section states if a person appears voluntarily before a court after the warrant is issued, any justice may revoke the warrant however some court registries take a different view and may seek to tell you that you cannot surrender in their court and must at the court that issued the warrant.

Why should I get a lawyer to surrender me?

The above process, seems simple enough to do – which may cause a person to think, why should I pay a lawyer to help. This ultimately, will depend on the circumstances. For serious offences, or where a person has a history of failing to appear then having a lawyer appear for you is imperative to ensure that you put your best case forward as to why you should be allowed to be granted bail or allowed at large.

In some instances, a defendant simply does not feel confident in appearing before the court to explain why they failed to attend. There is no one reason as to why you should engage a lawyer to assist.

Each of our lawyers are experienced with the specific requirements of surrendering a defendant to the court, ranging from a defendant missing a court date due to illness to something at the more extreme of a defendant remaining outside of Queensland for 20 years.

If I get a lawyer to surrender me to the court, do I have to use them for my matter?

The short answer is no. If you wish to handle your matter on your own then you are under no obligation to have the lawyer that helps with the surrender continue to work on your matter. If this is the case, it is best to tell them upfront so that they can ensure that they do not remain on record for the matter. You may even ultimately decide to retain their services for the duration of the matters as a result of your experiences with them.

Can I surrender and just deal with the charge that caused the warrant straight away?

The short answer is generally yes however it very much depends on the charge. If the charge is something like drink driving then you may try and deal with the charge straight away after surrendering however if you are after a work licence than you must not deal with the charge straight away. If the charge is more serious then you should not (and may legally be unable) to deal with the charge after the surrender.

You would need legal advice on whether you can deal with the charge straight away. Certainly if possible and if your best interests dealing with the charge might be the most efficient way but always get legal advice on this first as the wrong move can have significant consequences.

Conclusion

This article is by no means a comprehensive outline on how to surrender to the court and should be read in conjunction with our article on arrest warrants.

The key takeaway from this article is simple – do not wait to be arrested take positive action before that occurs

What courts do you cover?

We cover all courts in South East Queensland from Coolangatta to Hervey Bay and out to Toowoomba.

We are also a criminal law firm, we don’t do any other type of law so we are in the courts every day helping people with charges like this.

Just some of the courts we appear in to surrender are;

Beaudesert Magistrates Court

Beenleigh Magistrates Court

Brisbane Magistrates Court

Caloundra Magistrates Court

Caboolture Magistrates Court

Cleveland Magistrates Court

Coolangatta Magistrates Court

Gatton Magistrates Court

Gympie Magistrates Court

Holland Park Magistrates Court

Ipswich Magistrates Court

Maroochydore Magistrates Court

Nambour Magistrates Court

Noosa Magistrates Court

Pine Rivers Magistrates Court

Richlands Magistrates Court

Redcliffe Magistrates Court

Sandgate Magistrates Court

Southport Magistrates Court

Toowoomba Magistrates Court

Wynnum Magistrates Court

How do I get more information or engage Clarity Law to act for me? 

If you want to engage us or just need further no obligation information or advice then you can either;

1.       Use ourcontact formand we will contact you by email or phone at a time that suits you

2.       Call us on 1300 952 255 seven days a week, 7am to 7pm

3.       Book a time for us to call you

4.       Email of firms founder This email address is being protected from spambots. You need JavaScript enabled to view it.

5.       Send us a message on Facebook Messenger

We are a no pressure law firm, we are happy to provide information to assist you and a fixed price for your services, if you want to engage us then great, if not then you at least have more information. You wont be chased or hounded to engage us.  Remember its critical you get advice before going to court, this offence can have an impact on you, your family and your employment or business.  

If you are in Fortitude Valley or the Surfers Paradise safe night in the near future, you will undoubtedly see members of the Queensland Police Service with a metal detector scanning people on the street.

Is this legal? Do police have a search warrant? What happens if I don’t wish to comply?

These are all good questions. This new power has come about as a result of a recent amendment to the Police Powers and Responsibilities Act, known as ‘Jack’s Law’. Jack’s Law is aimed at fighting knife crime in safe night precincts and at public transport stations (such as train stations).

A senior police office may authorise the deployment and use of a handheld scanner (or wand) in a designated safe night precinct or public transport station if a series of criteria regarding weapons offences have occurred in that area. In such event, a notice must be published about the use of the handheld scanners within the area – however it may be unlikely that the vast majority of the public actually see the notice.

Why might I be searched?

Anybody in one of the above nominated areas where a hand held scanning notice has been published may be stopped and required to submit to wanding. NOTE While the police have the authority to wand a person, this does not authorise police to conduct a search without a warrant beyond the exercise of this power.

If the police decide to wand you, they must exercise their power in the least invasive manner possible and if practicable ensure that the search is conducted by a member of the same sex as the person being searched. Police have the power to detain a person for as long as reasonably necessary to complete the wanding and the police officer must:

1. if requested by the person, inform the person of the police officer’s name, rank and station; and
2. if requested by the person, provide the information mentioned in paragraph (a) in writing; and
3. produce the police officer’s identity card for inspection by the person unless the police officer is in uniform; and
4. inform the person that the person is required to allow the officer to use a hand held scanner to determine whether the person is carrying a knife or other weapon; and
5. offer to give the person a hand held scanner information notice and, if the person accepts the offer, give the notice to the person.

If metal is detected by the officer, you may be required to produce the item which has set off the scanner (such as keys, phone, belt buckle ect) and resubmit to be wanded again. Much like going through the metal detectors at a domestic or international airport.

It is an offence to not comply with the direction of police without a reasonable excuse. If, without a reasonable excuse you do not submit to the wanding police may charge you with Obstruct/Assault Police or more likely Contravene direction or requirement of a police officer. At the time of writing, there is limited guidance surrounding what offence someone will be charged with.

If police located a knife or weapon (such as screwdriver ect), you will likely be charged under the Weapons Act with possess knife in a public place or a like offence.

The above is a general outline about a recent change in law. If you have been charged with an offence for failing to submit to being wanded or with possessing a knife feel free to contact our office for an obligation free consultation.

How do I get more information or engage Clarity Law to act for me?

If you want to engage us or just need further information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you

2. Visit our website at www.claritylaw.com.au

3. Call us on 1300 952 255 seven days a week, 7am to 7pm

4. Book a time for us to call you

5. Email our firms founder on This email address is being protected from spambots. You need JavaScript enabled to view it.

The Commonwealth Criminal Code Act 1995, section 474, creates a number of offences connected with the illegal use of phones and computers. This can range from attempting to defraud someone using a phone or computer, to intercepting phones (wiretaps), to tampering with phone identifiers, to name some.

What this article is specifically concerned with is the most prosecuted offence under the section:

Using a carriage service to menace, harass or cause offence.

Elements of the offence

The text of the offence is:

 (1)  A person commits an offence if:

                     (a)  the person uses a carriage service; and

                     (b)  the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

The burden of proof is always with the police and prosecutors. What they must prove for this offence is:

A person used a carriage service

And

A ‘reasonable person’ would regard it as being menacing, harassing, or offensive

And

The person (using the carriage service) was at least aware of a substantial risk that a reasonable person would regard her conduct as menacing, harassing or offensive.

A ‘carriage service’ is defined as ‘… a service for carrying communications by means of guided and/or unguided electromagnetic energy.’ In other words, mobile communication devices or computers. Additionally, the following acts constitute a use of a carriage service: “making a telephone call, sending a message by facsimile, sending an SMS message, or sending a message by email or some other means using the Internet.”

The word ‘uses’ should be attributed its ordinary meaning. If data was transferred from a defendant to another person, we can assume the defendant was ‘using’ a mobile phone or computer to enable that transmission.

A ‘reasonable person’ is a hypothetical person, but in reality, it requires a magistrate to assess what such a person who consider to be menacing, harassing, or offensive. One judge stated this to be “the need to view the circumstances of allegedly offensive conduct through objective eyes and to put to one side subjective reactions which may be related to specific individual attitudes or sensitivities.”

So far as the meaning of the words ‘menace’, ‘harass’ or ‘offence’, legally, “[t]he words ‘menacing’ and ‘harassing’ imply a serious potential effect upon a [recipient], one which causes apprehension, if not a fear, for that person's safety.”

Putting the above in layman’s terms, this offence is concerned with a person using a mobile phone or computer to transmit information that a reasonable person would find menacing, harassing or offensive. The information transmitted can be spoken words, as in a phone call, written words, as in a text message, or the sending of a static or moving image, as in photos or videos.

There is, additionally, an ‘aggravated’ version of the offence, which incorporates what is written above, but with the addition of ‘private sexual material’. For example, a woman using per phone to transmit ‘nudes’ of her ex-boyfriend to the internet without his consent.

Penalties

The offence in its ‘simpliciter’ form has a maximum penalty of 5 years imprisonment.

The offence when it is ‘aggravated’ has a maximum penalty of 6 years.

In practise, these offences, save for those that are exceptionally serious, are penalised by way of a fine or the equivalent of a probation order.

Some examples of Menacing, Harassing or Offensive

In one case, a defendant phoned the employee of a TAFE and said she was going to attend the TAFE with a shotgun and start shooting, and would ‘shove the shotgun up [his] arse’ and pull the trigger. This was deemed to be menacing by a magistrate.

In a different case, after a woman lost a case in the federal court, she proceeded to repeatedly call staff of judges of that court 189 times in an 18-hour window. This was deemed to be harassing.

Another defendant sent emails and Facebook messages to his former solicitor, threatening to sue him, and personally confront him, as said he would ‘hunt you down’. This was after the solicitor [unsurprisingly] found it impossible to work with the defendant, and withdrew from acting for him.

Defences

One defence is the police were simply mistaken about who transmitted menacing, harassing or offensive data. That is, they charged the wrong person.

Another is the prosecution cannot prove that the defendant sincerely did not intend for the communications to be harassing, menacing or offensive.

Conclusion

That is an overview for this offence. As can be seen, this offence can be a little technical, and we recommend seeking expert legal advice if you are charged with such an offence.

How do I get more information or engage Clarity Law to act for me? 

If you want to engage us or just need further obligation free information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you

2. Call us on 1300 952 255 seven days a week, 7am to 7pm

3. Book a time for us to call you

4. Email of firms founder This email address is being protected from spambots. You need JavaScript enabled to view it.

5. Send us a message on Facebook Messenger

Introduction

Contravene order about device information from digital device (or a section 205A offence) is a charge which a defendant may find themselves facing in the event that they refuse to allow access to their devices when required by a search warrant under ss 154(1) or (2), 154A (2) or 178A(1) of the Police Powers and Responsibilities Act 2000 (PPRA).

The offence is taken very seriously by the courts and arose as a result of changes to the Criminal Code aimed at addressing serious and organised crime. The District Court of Appeal say that the offence is a serious one which strikes at the heart of the administration of justice. It involves a failure to comply with a court order. It follows that in considering the penalty to impose, it is necessary to take into account the need for general deterrence and denunciation.

Elements of the offence

The offence is a straightforward one, it arises when a person who, without reasonable excuse fails to give access to an electronic device when served with a relevant warrant under the PPRA or the Crime and Corruption Act.

This may look like refusal to give the password to an identified laptop or mobile phone during the execution of a search warrant.

It is important to note that Police in the serving of a warrant that contains the authority to search devices, must notify a person that failure to comply without a reasonable excuse constitutes an offence against s205A of the Criminal Code.

Defences

The key defence available for a defendant is having a reasonable excuse for not giving access to the device. The Court has determined that a reasonable excuse takes its ordinary meaning, effectively “would the average person believe that the excuse is reasonable”. The key case for the defence of reasonable excuse is Commissioner of Police v Barbaro [2020] QCA 230, where the court found that legal professional privilege is protected and could constitute a reasonable excuse. The Court made a clear distinction that not every instance where privilege is claimed will be a reasonable excuse, it will depend on circumstances and will be on the defence to establish a claim for privilege.

This is not the only example of a reasonable excuse, in early 2023 the Court determined in Queensland Police Service v Ahmed [2023] QMC 2, that the defendants excuse of not allowing male officers access to his device was reasonable, as the defendant’s phone contained photographs of his “uncovered” wife (note – the court heard and was satisfied that the defendant held genuine religious beliefs which would have been infringed had he allowed another male to view his uncovered wife). The court held that (amongst deficiencies in the prosecution case) a genuine religious belief could be constituted as a reasonable excuse to not comply with a warrant to provide access.

The legislature has deliberately excluded self-incrimination as a reasonable excuse. That is to say, it is not a reasonable excuse to not comply, if complying would incriminate you of an offence. This is consistent with the legislative intent for allowing law enforcement to conduct investigations into offences.

Why should I contact a lawyer if I am charged with this offence?

The simple answer is that the Court takes this charge very seriously. The most common penalty for this offence is a period of imprisonment, either wholly or partially suspended or to be served in actual custody.

The next question you might ask, is “if I am going to receive a sentence of imprisonment, why should I get a lawyer?” There are four different means in which imprisonment can be served (Russell Tannock of our office has written a comprehensive article here).

By engaging Clarity Law we are able to ascertain whether there is an available defence. We are able to review your case and assist in obtaining the best available outcome in the circumstances.

Conclusion

This article, is by no means a complete guide to this type of offence, but should be a useful starting point for someone who has been charged but not yet been to court. If you are charged with an offence, please contact our office for a free initial consultation.

How do I get more information or engage Clarity Law to act for me? 

If you want to engage us or just need further no obligation information or advice then you can either;

1.       Use our contact form and we will contact you by email or phone at a time that suits you

2.       Call us on 1300 952 255 seven days a week, 7am to 7pm

3.       Book a time for us to call you

4.       Email the firms founder This email address is being protected from spambots. You need JavaScript enabled to view it.

5.       Send us a message on Facebook Messenger

Introduction

This article is aiming to help clarify some issues people may come across in the interaction between civil domestic violence orders (DVO), criminal charges for breaching those orders, and family law orders – particularly in connection with parenting issues.

Credit is due to Justice Hogan of the Federal Circuit and Family Court, from whom I adapted some of the material in this article.

I would also like to make clear that Clarity Law specialises in Criminal and Traffic law. We do not practise in the DV space (except for breaches of a DVO which we can help with) or family law space. In other words, what is shared here must not be relied upon as legal advice. It will not serve as a substitute for specialised legal advice.

Social Context

According to Queensland police statistics, there were 53,075 breach domestic violence order offences prosecuted in 2022. This is compared to 6,961 offences in 2002. This does not necessarily mean that the prevalence of domestic violence has increased based on those numbers alone (and indeed, if that was the case, then the government’s efforts to tackle domestic violence would be a massive failure), but it does confirm that the overlap between the criminal law and family law is as relevant as ever.

We can only assume that prosecutions for breaches of domestic violence orders will increase even more, due to the Queensland government’s recent introduction of legislation regulating ‘coercive control’ within domestic relationships. The concept of coercive control is better explored in a separate article, but suffice it to say, it broadens the definition of domestic violence so widely that we are guaranteed to see more applications for domestic violence orders, and correspondingly, more breaches of those orders. Clink here for a guide targeted particularly at charges for breaching a domestic violence order.

A Scenario

Consider this scenario: a husband and wife live together with three children. There is a domestic violence order in place. The husband gets drunk, has an argument with his partner about previous infidelity, and during the argument he slams his hand down on the kitchen bench and threatens to “belt” his wife and calls her a “whore”. She calls police, and he grabs her phone and throws in hard onto the ground, smashing it. This is all within the earshot of the young children.

Police arrest the husband for breaching a domestic violence order. Police apply for, despite the wife’s objections, much more restrictive conditions in the current domestic violence order.

Eventually, the husband pleads guilty to common assault, breaching a DVO, and wilful damage (with the assistance of Clarity Law, of course). On the day of sentence, the Court confirms an order which prevents the husband from having interactions with the ‘aggreived’ (the wife) or the children, without written permission of the aggreived. After he is sentenced and the DVO is varied, he texts the wife to arrange to have contact with the children. She replies “they don’t want to see you.”

Suddenly, he has a big problem: he can’t persistently contact her without risking a breach of the DVO. So, where to from here?

Some Options to Get Contact

He could leave the legal system out of it, and continue to try and interact with his wife in an amicable way. This option is not recommended. In my experience, this option leaves the person who must obey the order open to further charges. It only takes a little deviation from the rules of the DVO for him to get charged with a criminal offence. Even if the wife is not going to call police over trivial breaches, there is a likelihood that there is going to be a disagreement between them at some stage. There will always be the looming threat of a DVO breach allegation in the background.

He could go back to the Magistrate’s Court to seek a ‘variation’ of the recently changed DVO. The variation aim to make the order less restrictive and make it easier for him to see his children. Trying to do this without the aid of a solicitor is not recommended. The Court may agree to change the order, but this is unlikely in circumstances where it has been varied recently. It is generally quite difficult for a ‘respondent’ (the husband in this scenario) to get a DVO varied.

He could go to the Family Court and ask for ‘parenting orders’ which will allow for him to have regulated contact with his children. Even if this seems like a ‘hassle’, it is likely the safest and most effective way for him to get legal contact with his children. At the least, he should seek an initial consultation and some advice.

How DVO Orders and Family Court Proceedings Interact

If he has decided to initiate family law proceedings, it may be helpful to know how the domestic violence orders/convictions interact with family law proceedings.

The Family Court, when considering what parenting orders to make, must keep the ‘best interests of the child’ squarely in mind.

The Family Law Act specifically tells the Court, when considering this question of ‘best interests’, that it must give primary regard to:

(a)  “the benefit to the child of having a meaningful relationship with both of the child’s parents;

and

(b) “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

The law states the need to protect the child must be given higher priority than the child having a meaningful relationship with both parents.

The Family Court is additionally obliged to consider, when assessing a child’s best interests:

• “any family violence involving the child or a member of the child’s family;
• if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

o   the nature of the order;

o   the circumstances in which the order was made;

o   any evidence admitted in proceedings for the order;

o   any findings made by the court in, or in proceedings for, the order;

o   any other relevant matter”.

It is significant to note that a party to a proceeding is required under the family law legislation to inform the court of family violence orders:

“60CF Informing court of relevant family violence orders

(1)  If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the court of the family violence order.

(2)  If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that person may inform the court of the family violence order.

(3)  Failure to inform the court of the family violence order does not affect the validity of any order made by the court.”

The Court is additionally instructed to make its own assessment of the possible risk of family violence. This will necessitate the Court considering all available material when making that assessment, regardless of what has happened in other courts:

“60CG Court to consider risk of family violence

(1)  In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:

                     (a)  is consistent with any family violence order; and

                     (b)  does not expose a person to an unacceptable risk of family violence.

(2)  For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.”

There is a legal preference, then, to make family court orders which are consistent with any domestic violence order, however, family court orders will invalidate parts of domestic violence orders to the extent the domestic violence order conflicts with a parenting order.

Presumption of equal shared parental responsibility

The Family Law Act presumes equal shared parental responsibility, that does not mean, as is often mistakenly believed, that this means equal time in parental contact. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

The presumption equal shared parental responsibility does not apply where there are reasonable grounds to believe that a parent of the child has abused the child or engaged in family violence.

Summary

The foregoing means, in laymen’s terms, that the Family Court judge will inevitably know about the domestic violence order allegations. Even if a person has consented ‘without admissions’ (this is, agreed to a DVO without admitting the facts constituting the application for the DVO), the allegations are something the Court is obliged to take into account. People sometimes think if they have consented without admissions to a DVO the Family Court will then simply put that aspect of the case to one side. Not true.

Sometimes there will be criminal charges involving alleged domestic violence and a person is acquitted of those charges. The nature of those allegations will still be considered by the Family Court and the other party in the family law case is not prevented from rehashing those allegations in the Family Court.

Part of the reason why the Family Court considers what has happened in civil DVO orders and criminal proceedings is because one legal test the Court must apply, in relation to parenting orders, is an assessment of whether there is an ‘unacceptable risk’ to the child. This is quite a different legal test from ‘proof beyond reasonable doubt’, which is the legal test in a criminal case, or ‘the balance of probabilities’ which is the civil/DVO application test.

The Family Court does have the legal authority to overrule parts of domestic violence orders to facilitate its parenting orders.

What Does it all Mean?

Practically speaking, once a person initiates or responds to Family Court proceedings, the person should expect any allegations (proven or otherwise) of domestic violence to make their way into the Family Court proceedings. The Court will give any allegations of domestic violence serious consideration, even if the allegations do not state the child or children were involved in any way. This is not necessarily fatal to the person getting contact with their children, but it may mean supervised contact with the children at first. It will also mean the person may be obliged to explain or put the allegations into context in response. The person will likely help their cause by engaging in efforts to demonstrate rehabilitation to the Court, as this will inform the Court’s assessment of ‘unacceptable risk’. Rehabilitation may involve participating in such programs as “Men Choosing Change’ or alcohol counselling if alcohol was involved.

Conclusion

This is as far as I can take my guidance, but I hope the reader, if nothing else, takes from this article the importance of getting expert advice in relation to domestic violence orders and possible family law proceedings. People who fail to act in this space can be prevented from seeing their children for a long time. It is a hard road to fight it out in court, but is probably the easier option compared to giving up or doing nothing.

How Can Clarity Law Help Me?

Despite the content of this article, we do not involve ourselves in domestic violence orders or family law. We specialise in criminal and traffic law. If you have a contravention of a DVO charge we can absolutely help. Because we specialise, we are very good at what we do. We are able to assist with criminal charges related to domestic violence, and offer referrals to law firms we trust for something beyond our practice areas.

Recently, we succeeded in an appeal to the District Court. We appealed a magistrate’s decision to record a conviction on our client’s criminal record. At the appeal hearing the judge decided to change the magistrate’s order so a conviction was not recorded in her criminal record.

This is significant for our client because it means her conviction will now not be revealed in any criminal history check. I also means she will not have to declare the conviction for the purposes of travel.

How we did it

In the Queensland court system, if a Magistrates Court imposes a penalty for a criminal offence which the defendant (or his lawyer) deem as being excessive or not imposed by proper application of the law, the defendant can then appeal to a higher authority to change magistrate's decision, that higher authority is the District Court.

To appeal a magistrate's decision, the person appealing (or their layer) needs to file a notice of appeal within 28 days of the decision. After that you are required to file a written outline of argument with the District Court registry, and serve a copy of that outline on the Director of Public Prosecutions. The DPP will represent the Commissioner of Police in the appeal.

In this particular case our client pleaded guilty to a charge of assault occasioning bodily harm. The assault was the pulling of a barmaid's hair and ripping some of the hair out from her scalp. The offence was aggravated because it was committed in a licenced venue within a safe night out precinct of the Sunshine Coast.

Balanced against this, in our client's favour, was the fact that she had absolutely no criminal or traffic history, she had written an unreserved apology to the complainant, she had undertaken alcohol and psychological counselling, she was gainfully employed, and she pleaded guilty at an early opportunity. She was also supported by her husband in court and by character references which spoke very highly of her usual demeanour and absence of aggression.

I personally appeared for the client in the Magistrates Court and argued that a period of probation without conviction was a suitable penalty.

The police prosecutor argued for a sentence of imprisonment, where my client was either to serve some actual time in prison, or her sentence should be wholly suspended. This outcome would necessitate the recording of her conviction.

The magistrate decided to impose probation on my client. However, the sticking point was he did not make me or the client aware that he was going to record a conviction until the at the very end of the hearing of the case. After I heard this I jumped up and asked for an opportunity to make further submissions about the recording of a conviction. The magistrate rebuffed my request, stating that in his opinion given the pain and suffering caused to the complainant and the fact my client held onto her hair for about a minute, that a recording of a conviction was suitable.

We appealed the case on the ground that it was “manifestly excessive”. I prepared the written argument and argued the case in the District Court personally.

The “manifestly excessive” appeal ground means that if the District Court judge hearing the appeal agrees with the argument that the penalty imposed by the magistrate was so harsh that it did not fall within the magistrate's proper exercise of his sentencing discretion, then the District Court ought to change the outcome.

I supported my arguments with a case from the Court of Appeal [R v ZB [2021] QCA 9], and a case from the District Court [NHR v The Commissioner of Police [2021] QDC 67]. The judge in the NHR case decided that a magistrate recording a conviction for a first time offender who punched another patron in a pub, was manifestly excessive. The judge also reviewed other similar cases where a judge had determined that the recording of a conviction for a first-time offender for a charge of assault occasioning bodily harm was excessive.

The short version is, my argument was supported by good cases.

Representatives for the Director of Public Prosecutions opposed my arguments, stating that the magistrate's decision did fall within the proper bounds of his sentencing discretion.

Conclusion

Ultimately, the judge agreed that the recording of the conviction was manifestly excessive, but also identified an appeal point himself, which was our client had been denied “natural justice” because we were taken by surprise by the recording of a conviction, and I was not given an opportunity to respond to that aspect of the magistrate’s decision.

The judge overruled the magistrate’s order and ordered that no conviction should be recorded in our client’s criminal history.

Experience matters

We at Clarity Law are all experienced lawyers. I practised as a barrister for years before joining Clarity Law as a solicitor. Our experience means we are able to identify when a magistrate has made an error, and properly protect our clients’ rights by appealing that error when it matters; as it did in this case. Fortunately, we very rarely appeal because we have a proven track record for excellent results for our clients!