Clarity Law

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Thursday, 30 March 2023 15:48

How Domestic Violence Orders May Affect Family Court Proceedings

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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.

Read 338 times Last modified on Wednesday, 05 July 2023 17:17
Jacob Pruden

Jacob is a former barrister and now criminal defence lawyer with over 8 years experience appearing in courts throughout South East Queensland representing clients charged with criminal offences.