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.