The media is often captivated by the incidence of a celebrity embroiled in an application for a family violence protection order. It is essential to keep in mind when reading these reports that every respondent is innocent of the behaviour alleged until findings are made by a Court of law.
So, what actually is the process that leads to potential findings of domestic violence?
When an application for a protection order (as it is termed in Queensland) is filed, the first step is that the matter is listed for a “mention”, at which time a Magistrate considers whether it is appropriate to issue a temporary protection order against the respondent. A temporary protection order is just that – a temporary order that provides immediate protection to an aggrieved party until such time as the matter is further considered by the Court. A temporary protection order can have a number of different conditions. The conditions granted are dependent on the facts and circumstances of each case, and will vary depending on what conditions the aggrieved is seeking. By way of example only, some of the conditions may include:
- That the respondent is to be of good behaviour and not commit domestic violence against the aggrieved;
- That the respondent is prohibited from contacting the aggrieved;
- That the respondent is prohibited from attending the aggrieved’s workplace or residence; or
- That the respondent is prohibited from following or approaching the aggrieved.
It is also possible for a temporary protection order to name particular people, whom the aggrieved seeks to protect from the respondent. For example, the aggrieved’s children or the aggrieved’s family members who the aggrieved considers are at risk of the respondent perpetrating domestic violence against.
It is important to be aware that even if a temporary protection order is made, this does not necessarily mean that findings of domestic violence have been made against a respondent. Although the Court must be satisfied that an act of domestic violence has occurred to grant a temporary protection order, this decision is often based solely on the aggrieved’s unchallenged evidence contained in their application.
On many occasions, the respondent may not even be present or aware of the aggrieved’s application at the time a temporary protection order is made. This is termed an ex parte Order if made in the absence of the respondent.
The aggrieved’s evidence will remain untested until such time as a final hearing occurs. As such, it cannot automatically be assumed that because a temporary protection order has been made, the respondent has committed domestic violence.
This is often a factor that we see lost in a media storm, when someone is alleged to have perpetrated domestic violence – the media are often quick to jump to conclusions, without applying the legal process or appropriately considering the facts, circumstances and evidence associated with each case.
Following the implementation of a temporary protection order and once the application has been served on the respondent, the application will be listed for a further mention, which the respondent will be afforded the opportunity to attend. At this mention, the respondent will confirm whether they are contesting the application, or whether they are willing to agree to a final order on a “without admissions basis”. If the respondent contests the application, directions will be made that prepare the matter for a final hearing.
If a respondent consents to a final protection order on a “without admission” basis, this means that no findings of domestic violence have been made. The respondent has simply agreed to a final protection order being implemented, but does not accept the allegations of domestic violence made against them.
If the matter proceeds to a final hearing, a Magistrate will consider all of the evidence before them, including but not limited to:
- The aggrieved’s evidence in relation to the alleged domestic violence perpetrated by the respondent;
- The respondent’s response to the allegations of domestic violence;
- Evidence of any witnesses to particular allegations of domestic violence; and
- Any subpoenaed material relevant to the proceedings.
The evidence of the respective parties and any witnesses will be tested at a final hearing through a process called “cross-examination”. This is a process whereby the parties and each witness is asked questions about their evidence, and may be challenged on particular aspects of their evidence – it is often what we see in the blockbusters, where a lawyer is making a witness squirm in the witness box. Following the process cross-examination, both parties have the opportunity to make submissions in relation to their case, which would be based on the relevant law and evidence in the proceedings. Once the Magistrate has considered the evidence (including the testing of this evidence through cross-examination) and the submissions of both parties, the Magistrate will determine whether it is appropriate for a final protection order to be made. The Magistrate must be satisfied that:
- A relevant relationship exists (e.g. a spousal relationship);
- An act of domestic violence has occurred; and
- A final order is necessary and desirable.
It is only at this point in protection order proceedings that findings of domestic violence can be made.
It is clear from the above process, that there is a lot more to a domestic violence allegation or charge than what meets the eye. It is easy to get carried away with the headlines in tabloids and click-bait we see on social media. However, it is important to remember that an allegation is just that – an allegation. There is an extensive process that must be followed, prior to a final order being granted and of course, prior to findings of domestic violence being made. It truly comes down to the old cliché – “innocent until proven guilty”.