Domestic Violence – Responding to an Application for Protection Order

An application for a Protection Order (Domestic Violence Order) can be made by:

• A person applying to the court themselves;
• An authorized person such as a friend, relative, or a welfare worker to make an application on behalf of the person needing a protection order;
• A police officer on behalf of the person; or
• A guardian appointed by the Queensland Civil and Administrative Tribunal to make personal decisions for the person.

If you are named as a respondent on an application for a Protection Order, you can take the following courses of action:

1. Negotiate the Withdrawal of the Application or Enter into an Undertaking

This involves a solicitor writing to the person to request that they withdraw their application. In doing this, it may be beneficial to offer an undertaking which is a signed promise that you will abide by certain conditions that usually reflects you will be of good behaviour and not commit any acts of domestic violence. The main difference between an undertaking and a protection order is that an undertaking cannot be enforced by the court and does not result in you being charged for contravening it, but it can be used as evidence in a subsequent application made against you.

The main advantage of this approach is that a formal order is not made against you by the court, and the applicant is provided with reassurance that they have something signed by you stating that you will remain of good behaviour. Entering into an undertaking also provides both of you with a chance to resolve the issues at an early stage without the emotional and financial stresses of a lengthy court hearing.

2. Consent Without Admissions to a Final Order

This option means that you agree to a final protection order being made against you on a final basis, but you are not admitting to any allegations made against you. The conditions that would be imposed can be negotiated with the applicant.

The main advantage of this approach is that a resolution is achieved quickly without admissions to any allegations made against you. The main difficulty of the process is the negotiation with the applicant regarding additional terms. In taking this approach, a protection order will be made against you which you must strictly comply with. If you breach a protection order, it is considered a criminal offence and police may then charge you with an offence.

Further, whilst a Protection Order is a civil Order, it can have consequences. This includes the being ineligible to hold a weapons licence or any weapons for a period of 5 years from the date of the Order.

3. You Contest the Application and Proceed to a Hearing

Contesting an application made against you is the most difficult and costly approach which requires the Applicant and any witnesses involved in the matter to file affidavit material. The Respondent and any witnesses are then required to respond with Affidavit materials. All parties and witnesses must then appear at a hearing in the Magistrates Court and be available for cross-examined If you are subject to a temporary protection order, you cannot cross-examine the other party, and you must engage legal representatives. Otherwise, the Court could consider the evidence of the Court without cross examination.   The presiding Magistrate will consider all the evidence provided, and determine  whether or not a final Proteciton Order should be made. In making this determination, there are two consideraitons that must be satisfied:

1. That you committed acts of domestic violence; and
2. Whether a protection order needs to be made.

The advantage of this approach is that there may be no Final Order made against you. However, if the magistrate makes a protection order, you will not have any control or opportunity to negotiate the terms of the order. Further, there would be a positive finding of fact that you did commits acts of domestic violence, which can be considered in other matters, such as parenting or property matters.