Section 42 of the Domestic and Family Violence Protection Act 2012 (the Act) is a crucial provision that provides the court with the power to make or vary a domestic violence order after the defendant pleads guilty to breaching the DVO. The Act was introduced to protect individuals who have been victims of domestic and family violence. This article will examine the key provisions of section 42 and its significance where someone is charged contravening a domestic violence order.
What is Domestic Violence?
A court can make a domestic violence order if it is satisfied that a person has committed domestic violence or is likely to commit domestic violence in the future. Domestic violence can take various forms, including physical violence, emotional abuse, and financial abuse. It can also involve controlling behaviour and coercion.
The court can make an order even if the person who is likely to commit domestic violence has not yet committed the offence. The court must be satisfied that there are reasonable grounds to believe that the person is likely to commit domestic violence in the future. The order can be made against a family member, partner, or spouse.
What is a Domestic Violence Order
A domestic violence order can contain various provisions, including prohibiting the person from committing domestic violence or contacting the victim. It can also require the person to attend counselling or to undergo treatment for drug or alcohol addiction.
One of the significant advantages of a domestic violence order is that it can be made without the consent of the victim. This is particularly important because victims of domestic violence may be reluctant to come forward due to fear of reprisals. The order can be made on behalf of the victim by a police officer, a legal representative, or any other person authorised by the court.
Breaching a Domestic Violence Order
If a person breaches a domestic violence order, they may be subject to criminal charges. This can result in a fine, community service or if the offence is bad enough imprisonment. A breach of a domestic violence order is a serious offence, and the court may take it into account when considering future orders. We have a full article on breaching a DVO and its consequences on our website.
What happens if I plead guilty to breaching a domestic violence order?
In addition to punishing a person for breaching a DVO the court may also make other orders to protect the aggrieved, such as varying an existing DVO to an order.
The law requires that the court must;
- consider the order and whether, in the circumstances, the order needs to be varied; and then may;
- vary the order
The types of variation the court might consider includes;
- Limiting the ability of the defendant to see or communicate with the aggrieved or asking people to contact the aggrieved
- Order the defendant to leave the premises and not come back (an ouster order)
- Making the defendant attend an approved intervention program
- Not allowing the defendant to come to the house without written permission
- Limiting how close the defendant can come to the aggrieved
Will I get a chance to tell the court not to change the order?
The court must give the following persons a reasonable opportunity to present evidence and to prepare and make submissions about the variation of the order.
- the defendant
- the prosecuting authority for the offence
- reasonably practicable, the person who is or would be named as the aggrieved in the order.
In practice the discussion on whether to amend the current DVO is almost always done immediately after the sentence for breaching the DVO occurs. It means a defendant or their lawyer must be ready with arguments seeking the DVO not be amended
How do I stop the court from amending the order
You cannot stop the court from considering whether to amend they order as they are required to do this. What you need is well researched and considered arguments why the DVO should not be amended (if that is appropriate).
Are you really telling me if I breach a DVO I could be kicked out of home?
Yes. Often the amendment to the order will be more severe and have more consequences than the actual punishment for breaching the DVO.
You could be ordered to leave the house even if the aggrieved wants you to stay there. It all obviously depends on the facts of each case.
A recent case we saw a person had pleaded guilty to breaching a DVO. There was no violence or threats of violence and the defendant had and criminal history. The court after ordering a small fine then amended the order so that the defendant was only allowed to go to or stay at the home with the written permission of the aggrieved and that permission could be withdrawn at any time. It not hard to imagine how this situation could lead to more breaches in the future.
If I am ordered to leave our home I will have nowhere to live
This is often the consequence of the change to the DVO. The rental crisis has meant even getting somewhere to stay is difficult to say nothing of the cost.
What we find tends to happen is the couple will still live together in breach of the DVO which leads to constant arrests and in the end a likely prison sentence.
What can be done if the court changes the order?
You can apply back to the court to vary the order again but this is not easy and will take time. The courts are very reluctant to change an order by removing clauses.
You are going to say you need a lawyer to represent you
We are. There are plenty of charges where you could act for yourself. There are other charges where its fine to use the duty lawyer at court. However even minor breach could lead to the varying of the existing order for example preventing you from living at the family house unless your partner gives you written permission (that could be withdrawn at any time).
The consequences of the court amending the DVO means if you are charged with contravening a DVO you need an experienced lawyer not only to minimise the penalty but to seek the court not amended the DVO. A duty lawyer just won’t have time to properly prepare to argue against the amendment of the DVO.
Summary
In conclusion, section 42 of the Domestic and Family Violence Protection Act 2012 is an essential provision that provides protection to victims of domestic violence. However the courts power to amend the existing DVO order even if the aggrieved does not want it or does not ask for it can have devastating consequences for the defendant.
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;
- Use our contact form and we will contact you by email or phone at a time that suits you
- Book a time for us to call you
- Call us on 1300 952 255 seven days a week, 7am to 7pm
- Email This email address is being protected from spambots. You need JavaScript enabled to view it.
We are a no pressure law firm, we are happy to provide information to assist you, if you want to engage us then great, if not then you at least have more information about contravening a DVO. You won’t be chased or hounded to engage us. Remember its critical you get advice before going to court, as the charge can have an impact on you, your family and your employment or business.
