Consent Without Admissions

A person who is the subject of a domestic violence application can respond in one of four ways. They can ask for an adjournment while seeking legal advice, oppose the application and proceed to a hearing, do nothing, or consent to the order. Many people who choose the latter do so without conceding the allegation, which is called “consenting without admission”. A respondent can agree (consent) to the issuance of an order without admitting to the alleged violence or misconduct. This approach is commonly used by respondents in domestic violence proceedings who wish to resolve the matter quickly, but who are concerned about having a record attached to their name. This article looks at the implications of consent without admissions in domestic violence matters.

What is family and domestic violence?

According to the Family Law Act 1975, domestic violence is threatening, coercive or violent behaviour by a family member that makes another family member fearful for themselves or someone else. Examples of domestic violence include:

• physical and sexual abuse
• emotional and psychological abuse
• economic abuse, and
• threatening, coercive and controlling behaviour.

Domestic Violence Orders

Domestic violence orders are known by a variety of names in different jurisdictions, including Apprehended Domestic Violence Orders (ADVOs) in New South Wales and Intervention Orders (IVOs) in Victoria. They are all court-ordered directives issued to prevent the respondent from committing future acts of domestic violence.  The courts make these orders according to state or territory legislation, such as the Family Violence Protection Act 2008 (Vic) and the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The orders impose conditions on the respondent, such as prohibiting contact with the protected person or prohibiting the respondent from going to certain places. A protection order is a civil matter, rather than a criminal process. However, it is a criminal offence to breach a domestic violence order.

While protection orders are an important way of protecting vulnerable people, they can also be sought inappropriately and vindictively. In rare instances, innocent respondents might find themselves subject to such an order. If someone disagrees with a domestic violence order, they can seek legal advice, prepare an affidavit and attend a hearing on the matter. At this hearing, they will have a chance to present their side of the story under oath. They will need to answer the magistrate’s questions and either they, or their lawyer, can ask questions of the person bringing the application. The respondent can also present evidence to the magistrate, such as letters, photographs and doctor’s reports, in an effort to show that there is no legitimate need for the protection order.

Why consent without admissions?

Taking the option to consent without admission allows a respondent to agree to abide by the terms of an order without admitting to the alleged violence. Typically, the process would look like:

1. the applicant seeking a domestic violence order from the court on the basis of alleged conduct by the respondent
2. the respondent not contesting the allegations but agreeing to the terms of the order while clearly stating that their consent is not an admission of wrongdoing, and
3. the court issuing a domestic violence order on that basis, usually without exhaustive reference to the evidence.

Advantages to consenting without admission

The major advantage to this approach is that the matter is resolved without the need for a contested hearing. Consent without admission expedites the domestic violence proceedings, which are otherwise lengthy, emotionally exhausting, and can be expensive for both parties. The applicant receives immediate protection and hopefully some measure of reassurance. For the protected person, consent without admission can avoid the potential trauma of a contested hearing, where they would likely have to recount traumatic events and face cross-examination.

The respondent may choose to accept the order without admission over contesting an order for a number of reasons. They will not only save legal costs, but also avoid the stress of a hearing, as well as the potential reputational harm of the matter being made more public. Importantly, choosing this path also ensures that the order itself cannot be used as evidence of guilt in a related criminal proceeding.

If a respondent agrees to the order, it does not mean that they now have a criminal record (unless they subsequently breach the order). However, it is important that respondents do not proceed with the belief that there are no real consequences to consenting to an order without admission. On the contrary, the consequences can be significant.

The order will remain in place for some time, usually at least a year but in some cases much longer, and it may prevent the respondent from having contact with close family members, or even their children. It has been emphasised in both legislation and common law that a domestic violence order, whether consented to or not, is evidence of family violence that can weigh heavily on a family law proceeding into parental responsibility.

In addition, a domestic violence order can have consequences for respondents who currently hold, or are planning to obtain, weapons and security licenses. Those who are seeking citizenship should be particularly wary of consenting to an order: recent cases from the Administrative Appeals Tribunal suggest that, as eligibility depends on the good character of the applicant, the minister can cancel an application on the grounds of such an order. In Karatunov and Minister for Immigration and Border Protection [2017], for example, the Tribunal held that the existence of a consent without admission IVO can be suggestive that an applicant is not of the requisite good character. The Tribunal emphasised that it was only concerned with the fact that the court ordered a DVO, and not whether the respondent vigorously contested the allegations.

Agreeing to a domestic violence order without admission is often considered the easiest solution, especially when the respondent does not feel able to defend the action and agreeing to the order will have no effect on their livelihood. However, it is important to seek legal advice before deciding whether to agree with the domestic violence order application, given the potential consequences. The team at Go To Court Lawyers can suggest options given your specific circumstances. Please contact our offices on 1300 636 846 for any legal assistance.