Domestic Violence Protection Orders (DVO) and Child Access in Queensland

Domestic Violence Order (DVO) applications are dealt with by criminal and family lawyers on a regular basis. The Domestic and Family Violence Protection Act 2012 (QLD) (the Act) provides for the issuance of Protection Orders in Queensland where domestic violence is prevalent in the relationship.

Protection Orders aim to protect parties who have been subject to domestic violence and seek to prevent any future acts of domestic violence. They also aim to protect children from witnessing or being subjected to any form of abuse. Protection Orders should not be confused with Parenting Orders or Consent Orders, as both of these have quite different functions in law.

In Queensland, a child cannot be the applicant for a Protection Order. However, where a parent makes an application, the children can be named as a ‘Protected Person’ under that order. As a result, protection orders can cause a great deal of concern for parents going through separation and family law proceedings. Parents who are subject to restraint under a Protection Order often ask whether having an order in place will prevent them from seeing their children.

Definition of Domestic Violence

Domestic violence covers a broad category of behaviours and is not limited to only physical or sexual violence. Section 8 of the Act provides a definition for ‘domestic violence’. It can include emotional and psychological abuse, which intimidates or harasses the other party; economic abuse, such as limiting the other party from accessing money; using offensive or threatening behaviour or words; or in any way attempts to control the other party and/or causes them to fear for their well-being or safety. The violence can be directed at either a spouse or at the children, or both.

Who can make an Application for Protection?

The police can make an application on behalf of an aggrieved spouse. Alternatively, the aggrieved party themselves can make an application for protection.

Spouse Application

Before a Domestic Violence Order can be made, the Court must be satisfied that a ‘relevant relationship’ exists. The types of relationship included for consideration are:

• An intimate personal relationship;
• A family relationship; or
• An informal care relationship.

Even if parties have separated and no longer have an intimate personal relationship or family relationship, but are the parents of a child or children, a relevant relationship still exists under the domestic violence legislation.

Protection Orders: Elements to Prove

When an application is contested, a Protection Order can only be made if the Magistrate is satisfied that:

• acts of domestic violence have occurred; and
• it is necessary and desirable or an order to be made.

Types of Protection Order

A Protection Order can be made on either a temporary or final basis.

A Temporary Protection Order is usually granted on the first occasion the matter is brought before the court. This remains in force until a further order is made at a later hearing, or the application is dismissed.

Despite it only being temporary, a contravention of this type of order can result in criminal charges being laid. Should a spouse be charged with a criminal offence in relation to the DVO, the Magistrate hearing the charges has the power to make a Final Protection Order, even if the respondent denies the original allegations of domestic violence and has indicated an intention to contest the application.

A final Protection Order is made on a final basis and will contain all conditions that a Magistrate deems appropriate. Often, parties will negotiate the conditions that will be made on the order prior to appearing before the Magistrate. A Protection Order must contain the standard condition that a Respondent must be of good behaviour with respect to the aggrieved spouse or their children.

Other common conditions sought include order restraining the Respondent from:

1. approaching within a specified distance of the aggrieved spouse’s residence or workplace or places they would normally frequent;
2. direct or indirect contact with their former spouse, and from procuring another person to do so;
3. attempting to locate or asking another person to locate the aggrieved spouse;
4. approaching beyond a specified distance of the aggrieved spouse’s person;
5. using the internet or social media to contact the aggrieved spouse or making comments/postings concerning the aggrieved.

The usual duration for a Protection Order is currently 5 years. Submissions can be made to reduce the period a DVO is to remain effective.

How a Final Protection Order is Made

If the parties agree to the orders being made, they are considered ‘made by consent’ without ‘admissions’. This means that the Respondent does not agree with the allegations contained in the Protection Order application, but consents to an Order being made. This is often referred to as a ‘Consent Without Admission’.

If an application is contested by the Respondent, a final order can be made only if the Magistrate is satisfied on the balance of probabilities that alleged acts of domestic violence have occurred and that it is necessary and desirable for an order to be made.

Also, should a Temporary Protection Order be contravened while the hearing of a contested application is pending, the Magistrate hearing the contravention matter also has the power to make a Final Protection Order.

Contravening a Protection Order

Contravention of a DVO can result in criminal charges being laid. The Court takes contraventions very seriously. Penalties can range from a fine to periods of imprisonment, depending on the seriousness of the breach and the offender’s criminal history. A criminal conviction is often recorded.

Can a DVO Prevent Access to Children?

A DVO in place does not automatically prevent a person from seeing their children. However, access will depend on:

• The wording of the order;
• Whether parenting orders are in place; and
• The level of the alleged domestic violence.

Where there are no binding Parenting Orders in place and the children live with the aggrieved parent, that parent can limit their former spouse’ access to the children by refusing to agree to any temporary access conditions or to enter into negotiations to establish Parenting Order conditions. In the absence of such agreement, a parent subject to a DVO can effectively be prevented from seeing their children until Parenting Orders are made.

The parent subject to a DVO is limited to what they can do with respect to accessing their children and must take care not to contravene any condition of the Protection Order. It is possible that any contravention can result in criminal charges being laid.

It is important that Parenting Orders are made as quickly as possible after spouses separate to ensure that both parents can maintain a meaningful relationship with their children. These orders can also relieve a great deal of the anxiety, frustration, and anger that normally exists in such situations.

Protection Order Conditions

A Protection Order will invariably contain a mandatory condition that the Respondent must conduct themselves in a manner acceptable to the Court, and not commit acts of domestic violence against their former spouse or the children of the relationship or other persons residing with the former spouse.

Many Protection Orders also provide additional conditions such as forbidding the Respondent to:

• approach a home or workplace;
• approach the aggrieved spouse or to move within a stipulated distance from their person;
• have any contact with their former spouse or children unless in relation to matters involving the children except as agreed and set out in writing between the parties.

Family Court Considerations

When making Parenting Orders, the Family Law Act 1975 (Cth) provides that the ‘best interests’ of the children is the paramount consideration. In considering the best interests of the child, the Court will first consider the need to protect children from violence perpetrated by a parent. When doing so the Court must have regard to any Protection Orders in place and assess the risk of continued or renewed violence against family members. The Court must also consider any Protection Orders that have expired.

Where a Respondent consents without admission to a Domestic Violence Order being made but continues to deny that any domestic violence has occurred, the Federal Circuit and Family Court of Australia (FCFCA) must still take that DVO under consideration when making any Parenting Orders.

However, just because a DVO is in place does not automatically mean that the parent who is subject to the order will be refused access to their children. Where there is an allegation or evidence of serious family violence, the FCFCA may make an order that the offending parent can only spend time with their children while supervised at a sanctioned supervision center, or under the supervision of another family member.

Where an Order is in place but there appears to be little risk of serious violence towards the children, it is presumed that having a meaningful relationship with that parent is in the children’s ‘best interest’. It is because of this consideration that Parenting Orders are usually made which allow for both parents to spend time with their children.

Obtaining Parenting Orders

When a spousal relationship breaks down it is usually necessary to obtain legally binding orders for the children’s care. When there is a legally binding Parenting Order in place, they prevent the aggrieved party from withholding the child or acting in breach of the Orders.

If the parties can reach an agreement with respect to parenting arrangements, the FCFCA can make a legally binding ‘Consent Orders’. These are court orders which both parties consent to, usually negotiated through lawyers or mediators, which are ultimately submitted to the Court, sealed, and made binding.

If the parties cannot reach an agreement, parenting arrangements will usually be determined by the Court. To obtain Parenting Orders through the Court, one party will need to commence court proceedings by filing an Initiating Application to seek final Parenting Orders. A temporary Parenting Order is usually made at the preliminary stage which is binding on both parties and ensures that the children have a relationship with both parents.

Summary

Having a Domestic Violence Order in place does not automatically prevent the parent subject to the order from seeing their children unless there is a risk of child abuse or harm to the child.

The FCFCA has a duty to consider any previous or future risks of domestic violence and must consider any protection orders in place, even if the party subject to the order consented to the order but made no admissions that domestic violence occurred.

However, difficulties arise where the aggrieved parent refuses to agree to allow access to their former spouse. Where this is the case, it is important that parents, particularly where there is a Final Protection Order in place, attempt to have binding Parenting Orders made as soon as possible after separation.