Successfully Defending a Domestic Violence Application

While there are many genuine Domestic Violence Applications, experienced practitioners all too often see vexatious applications at the commencement of property and family law settlements.

Regrettably, some parties use the legislation as a defacto method to exclude their former partner from the home or from accessing their children. This can often exacerbate a difficult time and make matters worse.

If you are the respondent to a Domestic Violence Application that you wish to oppose, the best advice is to see an experienced lawyer who can provide you with timely advice on your prospects of success and guide you through the Court process. They can advise you what is a domestic relationship and more particularly what is domestic violence.

A protection order is commenced by way of a formal written application. Careful consideration should be given to this document, as this forms the substance of the complaint. Does the Application disclose that:

  1. A domestic relationship existed between the Aggrieved and Respondent;
  2. An act of Domestic Violence has occurred; and
  3. An act of Domestic Violence is likely to occur again in the future.

If one of the above elements is missing then it is unlikely that a permanent order will be granted by the Courts. To assist the Court in assessing these elements, the applicant is required to detail:

  1. The most recent incident, including dates if known;
  2. The history of domestic violence, including dates if known; and
  3. Why the Applicant believes that Domestic Violence is likely to occur again or a threat is likely to be carried out.

These details, when considered together assist you to prepare a defence. If the elements are all present then consider whether the allegations are true or whether there is some element of exaggeration. You should prepare a detailed response to the allegations.

If the incident did occur you should consider for example:

  1. Did it occur as particularised in the application or is there some other explanation?
  2. What is the context within which the incident occurred?
  3. Is the time frame suggested by the Applicant correct or was it a more distant occurrence?
  4. Did the incident occur in such a way that there is no likelihood of it occurring again?
  5. Where there any witnesses who can corroborate your version and will they be willing to provide evidence at trial?
  6. If the incident did not occur you should consider for example:
  7. Have you got an alibi?
  8. Are you able to independently corroborate that the incident did not occur as described.

Given that there was, presumably, a domestic relationship between the parties, Domestic Violence is often a bitter and hurtful jurisdiction to appear in. Parties find it difficult to focus on the issue. That is, should a Domestic Violence Order be made. A solicitor is particularly beneficial as they are able to dispassionately wade through the Application and look at the merits of the case.

A criminal lawyer can provide you with their advocacy skills and ensure that your defence is properly presented. Often an experienced advocate is able to resolve the matter without it proceeding to trial by highlighting the deficiencies in the elements above.

Things to Know About Domestic Violence Laws in the US

In every household there comes a time that an intense verbal argument occurs for a number of reasons: jealousy, financial problems, sibling rivalry, etc. However, sometimes people may physically assault a family member because they cannot control their anger, want to assert control or may have been verbally provoked. In so doing, the aggressor has committed Domestic Violence.

Whenever such serious matters occur, you may think of seeking outside help either by calling the police or by consulting an attorney. It is preferable to discuss the issue with an experienced legal professional first, since you may have trouble handling the legal ramifications that may ensue following the crime’s disclosure.

The aim of this article is to provide an overview of the most important legal aspects of Domestic Abuse, in a simplified and accessible way and to provide a starting point for more specialized study.

1. What is Domestic Violence?

Any person who physically abused a family or household member has committed the crime of Domestic Violence. Domestic assault is a distinctive and more serious case than Assault and Battery -which involves strangers- and is treated accordingly.

2. Domestic assault can be difficult to prove.

The easiest way to identify an abused victim is by looking for signs of assault on the body (scratches, bruises, etc.). In the absence of such evidence, eye witness’s testimonies are valuable, but are not always available. What adds complexity when evidence is inconclusive, is that it can be hard to prove the crime or ascertain who the instigator was (both parties can claim to have been abused or acting in self-defense and the aggressor could deny the charge).

3. The severity of the assault, the victim and the aggressor’s medical history and potential addictions are taken into account for the sentence.

Simply put, an aggressor who slapped his spouse will be punished more leniently, than one who punched and kicked her. If a child was abused the law is more severe. A person with addictions (a drug-user or an alcoholic), or mental disorders may also be required to undertake therapy.

4. If domestic abuse is reported, it can severely disrupt family relations.

Domestic assault is a serious criminal charge, which means that if the authorities find out about the crime, they are obligated to take legal action, whether the victim intents to or not. The state laws of Virginia dictate that the authorities can issue a no-contact (protective) order, effectively prohibiting any form of communication between the aggressor, the victim and the rest of the family.

5. First time offenders can have their case dismissed or may be judged more leniently.

The guilty party can have their sentence dismissed, if they have never committed a crime before. It is also possible that the state offers a plea bargain to the accused. If the abuser admits guilt before the case goes to court, the sentence can be more lenient.

6. The alleged abuser’s and the accuser’s personality and habits play an important role in court.

A person with a toxic and abusive personality, will have a harder time convincing the court about his innocence. On the other hand, the accuser may have an ulterior motive or may be a habitual liar. All of the above aspects come into play when the case is tried.

7. It’s advisable for both parties to avoid contact after the crime has been reported.

Whether you are the accuser or the perpetrator it is preferable to refrain from communicating between each other, as any form of contact could have a detrimental effect to your case, especially if a protective order is in effect.

Conclusion

Domestic Violence can be a complex and challenging crime to handle. Whether you decide to press charges against an abuser, or think you have been wrongfully accused, you should always consult with an experienced criminal law attorney.

Further reading

For more information on US Domestic Violence laws, visit the FindLaw site.

For an example of how States deal with Domestic Violence you can look at Code of Virginia §18.2-57 and the State’s Attorney General’s site.

What Type Of Criminal Injury Can Victims Of Crime Be Compensated For?

If you have been the victim of an act of crime or violence, you may be able to claim compensation. The offender does not have to have been caught and prosecuted for you to make a claim for compensation, you are usually entitled to compensation if: If the crime took place within the last 2 years. However, cases of abuse may be considered over this time period. You have been injured physically, mentally or psychologically as a consequence of a violent crime. If a member of you immediate family has died as a result of a violent crime, for instance your partner, parent, wife or child. If you were a witness to a violent crime and later suffered psychological injury and had to receive counselling. Physical and/or psychological injuries are graded according to their severity. Relatively minor injuries, such as scratches, cuts and bruises will not qualify for an award.

However, if a criminal injury victim has suffered a combination of minor injuries resulting in numerous visits to see their GP or a medical establishment, received treatment and the injury has lasted more than six week, they may be entitled to claim compensation. Every case is different. In England Scotland and Wales, the minimum amount of compensation you could expect to receive would be £1,000, moderate to severe injuries can be up to £500,000 compensation, dependant on the severity of the injury/injuries sustained.

Other Types of Compensation.

If for instance you property has been damaged as the result of a crime or theft, you may be able to claim compensation. If the person that committed the crime is caught and found guilty, the court can order them to pay you compensation. In regards to making a claim for any type of criminal injury, you will have needed to have contacted the police within 24-48 hours of the incident having taken place. You will not be eligible to make a claim for criminal injuries compensation if the crime has not been reported to the police.

Victims who have reported the incident to the police can apply. The police will pass the information to the Crown Prosecution Service who will make the court aware of your claim when the case is heard. The type of loss you can be compensated can include:

  • Out of pocket expenses (financial loss, loss of earnings due to time off work because of the crime).
  • Loss via fraud
  • Loss through damage or theft of property
  • Injury from a stolen vehicle

How to make a criminal injury claim

In England, Scotland and Wales there are many personal injury solicitors that also specialise in criminal injury compensation. You have two options;

Contact a recommended or reputable personal injury solicitors. They will take care of all the legal jargon and fight for the justice that you deserve. Most solicitors charge a small percentage fee if the claim is settled, usually between 20-25% – a small price to pay for the expertise and knowledge of a reputable criminal injury solicitor who can recover the maximum compensation that you are entitled to by law.

Another alternative would be to apply direct with the CICA (Criminal Injuries Compensation Authority). You can download the form from their website: www.cica.gov.uk or call them on 0141 331 2726. Your application will be processed usually within 12 months. If you accept the compensation that is offered to you, this will be paid out to you within 28 days.

It is highly recommended that you sought the legal advice and guidance of a criminal injury solicitor. A reputable, successful firm will usually recover the compensation for you as quickly as possible to make sure that you make a healthy recover from you injuries both physically and financially. Many solicitors offer free advice with no obligation to make a claim. It would be worth you while to consider this initial course of action in the first instance and it won’t cost you a penny.

Restrictions of Domestic Violence Protective Orders

Domestic violence is an issue that plagues families throughout the country. It is not exclusive to people who are married or in relationships. If can affect all members of a family, including children. In Florida, domestic violence is considered any assault or battery that results in injury to a family member or another person living in the household.

The Sunshine State has several laws in place designed to shield and protect people from domestic violence. Although it cannot be stopped entirely, the goal is to decrease the number of families and people who are victim to the abuse. One possible way is through a domestic violence protective order.

Protective orders are designed to limit the interaction one person has with another, whether that is physical contact or any sort of interaction. The orders are supposed to keep people safe from another, but domestic violence protective orders can be complicated.

A person can file for a protective order if he or she has been the victim of domestic violence or if there is the fear he or she might become a victim. For instance, if a spouse says he or she will harm the other person or that person’s family, a protective order could be issued.

To obtain a protective order, a person first must petition to the court requesting the order be instated. The court will use several factors to determine whether the petitioner has reasonable cause to believe he or she is in danger, including the history between the two parties.

A court is likely to grant a protective order if there has been physical abuse, threats of abuse, threats of kidnapping or harming children, abuse or killing of a family pet or use of a weapon. Whether the respondent – the person the order is filed against -has stopped the other spouse from calling law enforcement also could be used as proof.

The domestic violence laws only apply if the respondent is the petitioner’s spouse, former spouse, related by blood or marriage, living with the petitioner now or has in the past lived as a family. The law also would apply if the person shares a child or children with the petitioner, whether or not they have been married or lived together.

In Florida, violating a protective order is a first-degree misdemeanor, which is punishable by up to one year in jail and a $1,000 fee. A person can violate it in several different ways, including:

• Refusing to vacate the home, apartment or dwelling shared by both parties
• Being within 500 feet of the petitioner’s home, school, job, or any location specified as a place frequented by the petitioner, or a family member
• Committing an act of domestic violence against the petitioner
• Threatening by words or actions to harm the petitioner
• Intentionally communicating with the petitioner

Dealing With Domestic Violence in a Divorce Case

Each state has its own laws pertaining to domestic violence as an aspect of a divorce proceeding. But in most cases, including a Birmingham Divorce case, “domestic” refers to anything related to a home or domicile or place of residence, and “violence” refers to an unfair and unwarranted use of physical force, mostly accompanied with rage and fury, and exerted with an intent to hurt, damage or abuse. In terms of family law, usually “domestic violence” refers to any event that results in abuse, assault, torture thereof, among members of a family or household.

By some estimates, nearly 50% of divorce cases in the United States involve an element of domestic abuse or violence. Though it is difficult to determine the accuracy of the statistics because many cases may be unreported, many others may be exaggerated, and claims of violence may be followed by denials from the other side. Therefore, in a Birmingham Divorce case involving allegations of domestic violence, and in any such other divorce case in any state, the court will not necessarily ask for a domestic violence expert to mediate between the two spouses. Firstly, the court will try to determine whether the fact of domestic violence has a likelihood of causing hindrance in the fairness of the mediation process.

Under the family law in most states, the mediator plays a vital role regarding the screening of the two parties’ claims of domestic violence. Most courts leave it up to the mediator to examine both spouses regarding the claims of domestic violence and determine the extent and nature of the occurrence of such events. The job of screening gets easier where both the spouses are represented by their respective attorneys and it may not require a mediator to determine the element of domestic abuse or violence.

Usually the law clearly spells out the question of who can be a mediator in a case of domestic or family abuse or violence. In most states, the law specifies the mediator to have undergone a professional training in that area. But the question still remains whether a mediator is well equipped to handle the situation just with some amount of professional training. In fact, education background, exposure and experience of the mediator also a play a very important role in such cases. A mediator with vast experience will be able handle the situation much more capably and positively for both the parties.

From time to time, the states hold training sessions with an aim to equip the mediators to manage such situations where the couples are experiencing severe conflict, abuse and violence with each other. Several times, the mediators deal with the spouses separately for the sake of their own safety, and to avoid any scope for threats or intimidation from either party.