“I’ve been served with a domestic violence application. What do I do?”
A domestic violence application is the first step in a process that may end with an order forcing someone out of their home and away from their loved ones. While that result is not guaranteed, it is important to remember that it is a possibility and to treat the application with the appropriate respect from the beginning.
The first thing a person should do when they receive a domestic violence application is read it and every other document that came with it. You are looking for 6 things:
- Who is making the application (ie who is the “Applicant”)?
- Who does the application protect (ie who is the “Aggrieved” and are there any “Named Persons”)?
- Who does the application restrain (ie who is the “Respondent”)?
- Where was the application filed (eg Beenleigh Magistrates Court, Caloundra Magistrates Court)?
- When will the application next be considered by the court (eg 8:30am on 01/06/2023 in courtroom 3)?
- Is there a temporary protection order?
An application can be brought by a person seeking protection, or someone on their behalf (eg the police). That person, the Applicant, is responsible for progressing the application. Ultimately, it is the Applicant who must prove the three elements the court needs to make a protection order. In the meantime, the Applicant is the person to talk to about a negotiated solution.
The primary person needing protection is the Aggrieved. They are the person who must not have domestic violence committed against them, or cannot be approached or contacted (depending on the conditions in the application). Named Persons are other people, usually relatives or close contacts of the Aggrieved, who also need protection.
The Respondent is the person who cannot commit domestic violence against (or approach or contact) the Aggrieved and Named Persons. If you have received a domestic violence application, you are probably the Respondent.
Where the application was filed tells you the location of the court that the parties must attend to deal with the application. As soon as possible, you should search the internet for details of that court so you know (a) what laws apply (eg a court in Queensland will use Queensland laws); and (b) where you must go each time the matter is considered by the court.
The next date the matter will be considered by the court is very important. If the Applicant does not turn up, the court may throw out the application. If the Respondent does not turn up, the court may immediately make a final protection order in their absence. It is vital that you (or, if you have a lawyer and they have told you it is okay, your lawyer) attend court every time.
A temporary protection order is a protection order that (a) has been made based on the application (ie without fully considering the Respondent’s story); and (b) will expire relatively soon. A temporary order can have any of the conditions that a final order may have (eg do not commit domestic violence, do not approach the Aggrieved, do not contact the Aggrieved).
Even though it is temporary, and even though it has been made after hearing only one side’s story, breaching a temporary protection order has the same consequences as breaching a final order. It is a crime to breach a temporary protection order. The police can and will prosecute you.
In addition, breaching a temporary protection order dramatically increases the odds of the court making a final protection order. Regardless of how restrictive or unfair it is, you must comply with the temporary order or face the very real risk of being charged with a crime and all but assuring that a final order will be made.
Once you have identified these 6 things, you can get started on your response. If you seek legal help, whether from private lawyers, a community legal centre or through legal aid, you will need to tell those persons who is involved (eg the Applicant, the Aggrieved) and when the matter is next in court, so that meetings can be arranged before going to court.
You will also want to ensure that what you do does not breach the temporary protection order (if there is one). The last thing you want to do is call the Aggrieved, even for a relatively harmless reason like speaking to children, and find yourself charged with a crime. Whatever the temporary order says: do it. You will soon have the opportunity to challenge the temporary order.
If you have received a domestic violence application and have questions, Madsen Law would be happy to help. You can phone us at 07 3209 7744 or email us at mail@madsenlaw.com.au.
