Clarity Law

Specialist Criminal Law Firm Queensland
Wednesday, 20 July 2022 14:13

Ultimate Guide to Breaching a DVO – Part 2

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I have had recent cases which has shown the, at times, confusing aspects of domestic violence orders in Queensland. These cases have motivated me to provide some additional points which I did not include in my original article: The Ultimate Guide to Breaching a DVO.

 

How Do I Know If I Am Breaching My DVO?

The easiest way to figure out what would constitute a DVO breach is to read the order itself. There are three types of orders:

  1. A Police Protection Notice
    1. This is an order police can make if police believe a person is in need of protection and this police protection notice is necessary and desirable to protect that person.
    2. It is an offence punishable by a maximum of 3 years to breach one of these orders.
  2. A Temporary Protection Order.
    1. This is an order which a court may make if the Court is satisfied of a relevant relationship between the aggreived and respondent and, the Court’s view is the respondent has committed domestic violence against the aggreived. It only lasts until a Domestic Violence Order is made or the (DVO application) proceedings otherwise end.
    2. It is an offence punishable by a maximum of 3 years to breach one of these orders.
  3. A Domestic Violence Order.
    1. The Court may make this order, often for a period of 5 years, if the Court is satisfied of a relevant relationship between the aggreived and respondent and, the Court’s view is the respondent has committed domestic violence against the aggreived, and the order is necessary or desirable to protect the aggreived from domestic violence.
    2. It is an offence punishable by a maximum of 3 years to breach one of these orders. The maximum penalty increases to 5 years if, within 5 years beforehand the defendant has been previously convicted of a domestic violence offence.

Bear in mind, even if you do not agree with the order and even if it is a “Temporary Protection Order”, the conditions still carry equal legal force compared to a “Domestic Violence Order” which is the final order.

 

Protection Orders Serve an Important Social Function

As I am about to make some comments which may appear to be critical of protection orders and the prosecution of DVO breaches, I wish to make it clear that I am in no way denying that there are cases where people need protection and that protection orders are an important way of doing so. I acknowledge police have a difficult and unenviable job in investigating and prosecuting domestic violence allegations. I am certainly not attempting to make excuses for domestic violence abusers, far from it. What I am trying to do is give helpful guidance and tips in what can be a confusing area of the criminal (and by necessary overlap, civil) law.

 

Can I Breach a DVO if I Didn’t Agree to It?

Absolutely. A “temporary protection order” is routinely made while the parties wait for a final decision on the order to be made. This can often result, from the defendant’s perspective, in unfair outcomes.

We had a recent client who disputed the order all the way along to a “hearing” (or trial), in the belief he had not committed domestic violence (he wasn’t a client at the time). Even though the magistrate accepted the conduct did not appear to be threatening or violent, he still made a domestic violence order for two years anyway, placing severe restrictions on the contact our client could have with his children and in what circumstances.  

Then, our client appealed the decision to the District Court, arguing that he didn’t get a fair hearing. The District Court agreed with him and ordered for the domestic violence order to be heard by a different magistrate. Despite all of this, our client was still restricted by a temporary domestic violence order the entire time. The process took over a year. And yet the whole time, he still had to abide by the conditions of the order.

We see people make this mistake a lot, so we need to make it as clear as possible: even if you disagree with the order, you still have to abide by the order, even if you haven’t had your say in court yet. The standards of evidence are very different compared to criminal cases, and every day of the week magistrates are making temporary orders based on only one side of the story, usually written down in a form.

 

How Can I Be Charged with Breaching a DVO When I Wasn’t Violent or Threatening?

Even though the overriding purpose of these orders is to protect people, once an order is made, it can be very restrictive. It can kick people out of their homes, prevent them from going near their children, contacting someone, or even posting something on social media that might in some way refer to a person protected by the order.

A lot of people get tripped up by this.

So, understand you can still breach a DVO even if your actions were in no way violent or threatening. We had a client who, as part of the order, was allowed to telephone his daughter on certain days of the week. One week, he slipped up and called on the wrong day. That was charged as a breach.

We had another client, who accidentally sent an email to his ex, instead of his accountant. Because he was only allowed to contact the ex to make child arrangements, that was charged as a breach.

Once an order in place, the point is not only about domestic violence; it is also about controlling the actions of the person with the order on them.

We emphasise again, it is very important for a person who is restricted by an order to know exactly what the restrictions are.

 

How Do I Know What I Can and Can’t Do Under a DVO?

There is generally one of two ways. If an order was made in court and you were present at the time, then the magistrate will have explained the conditions to you. However, we do recognise it is usually hard to take in the information when you are on the spot in a court environment.

The other way you know what you can and can’t do is by reading a written copy of the order. The words used can be unfamiliar and unusual, but it is important to try and understand as best you can. If there is anything on the order you simply cannot get your head around, we recommend you seek the advice of a lawyer. The conditions of DVOs can sometimes be long and convoluted, but understanding exactly what the conditions are is the best way to protect yourself from being charged.

 

Is a Breach of a DVO Serious?

This is another thing people get tripped up on. You might think a particular breach is not serious (sending a text saying “hey”, or waving to your ex when you see her down the street) and would therefore not be treated seriously by a Court. This is incorrect. Once a court order is made (which is what temporary protection orders and domestic violence orders are), then any breach is to defy the Court’s authority. This is an important point to understand. Courts protect their authority rather fiercely. There are good reasons for this. If people think they can just ignore Court Orders and face no serious consequences, then it makes a mockery of the justice system. So, the Courts need to treat breaches of DVOs seriously. Repeated breaches, even if they are text messages trying to repair a relationship, can still lead to someone going to jail if the breaches are too numerous and persistent.

 

But I Didn’t Breach, The Other Side is Just Making Things Up!

If this is your situation, and it does happen, then you need to get some legal advice. We find it is rare that a breach is completely fabricated, usually there is something the accused has done, no matter how insignificant, that has been twisted into a breach. You need to be the judge of what the other person is likely to do. Will they try to breach you on something small? Will they try to entice you to interact with them and then go running to the police? If this is who you are dealing with, then you need to find a way to move on, or make sure absolutely every (legal) interaction is in writing.

 

Some Further General Tips

  • Even if there has been abuse from both sides of the relationship, the police operations manual specifically instructs police not to apply for “cross-orders”. That means police will pick a side and apply for an order for one side only.
  • The legislation specifically says a person protected by a DVO can’t be charged with an offence of aiding and abetting a breach of the DVO. This means a person will not be charged with an offence or get into trouble in any way, even if they told you that you could visit them or they have been bombarding you with phone calls and text messages.
  • Although it is an unnatural way of communicating, if there is an exception in the DVO allowing you to contact the other parent of your child or children to make child arrangements, you must not stray from the subject of making child arrangements whatsoever when contacting the protected person. We routinely see people breached for pushing the boundaries of these exceptions, even a little.
  • Even if you think you can prove the other side has lied to police or has done the wrong thing to you, do not expect the police to do anything about it. Once there is a DVO on you, all the police care about is whether you have breached it or not. They have very little interest in your side of the story. If you want to tell your side, tell a lawyer or the Court.
  • Don’t yell at or abuse police. They have a difficult job to do, and you only make things harder on yourself by trying to get into a debate with them. Trust us when we say, the police never back down from someone challenging them verbally or physically.
  • Sometimes, people think that police will drop the charges if the protected person goes to police and says they want to change their statement or withdraw the charge. Take it from us; the police won’t. Equally, it is rare for police to withdraw a DVO application just because a protected person says they do not want it.

 

Conclusion

I trust this further information has been of some help in understanding this area of the criminal law. If you are in trouble for breaching a DVO and need some expert advice, give our office a call and we will support you to navigate through this difficult time.

Read 15 times Last modified on Wednesday, 20 July 2022 14:25