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DVO Update - Police Will Have Power To Grant DVOs

Man getting arrested

Last time I wrote an update in relation to changes to the domestic violence laws in Queensland it was expressing the dismay felt by some of my clients in relation to what has become the common practice of Magistrates granting Domestic Violence Order (DVO) applications on face value, with scant evidence presented and before hearing from the respondent who presently now has to wait 6 months to try to prove their innocence.

The impact of these so called “temporary” DVOs, which have to remain in place until after determination of a final trial, can be devastating.  Well it seems the government has decided to ramp it up another gear again and the Magistrate does not even need to approve a DVO anymore.

On the 16 August 2016, the government introduced yet another amendment to the Domestic and Family Violence Protection Act 2012 (Qld). This time expanding the powers of the police in terms of issuing a Police Protection Notice, which is essentially the same as a DVO and can be issued by any police officer who believes somebody is in need of protection from domestic violence.

The police officer does not even need to attend a domestic disturbance to issue a Protection Notice against a person. The police have been given the power to issue a Protection Notice with all of the same clauses as a DVO, such as being of good behaviour, evicting a person from their home, prohibiting a person from having contact with somebody and their children, even in cases where there is a Family Law Order in place.  After issue of this Protection Notice, a DVO will be made by a Magistrate within 5 business days (along the same terms).

It cannot be denied that such powers will be of benefit in preventing domestic violence being perpetrated against genuine victims, however, it cannot be concealed that such a situation leads to an unacceptable risk of abuse by certain people out to use the Domestic Violence (DV) system to their advantage, making false allegations for tactical use in property and parenting proceedings in the Family Court.

I recently had a case where a client expressed to me that one phone call to the police is all it takes to ruin someone’s life these days. The delays in the Family Court system are not helping with people waiting up to 2 years for a final trial to see their children and including situations where they are required to disprove allegations rubber stamped by the Magistrates Court.

On the 23 September 2016, a Commissioner of the Western Australian Law Reform Commission recently slammed proposed amendments to the WA Domestic Violence Laws as “an insidious threat to basic human rights” referring to the ever expanding definition of domestic violence, relaxation of the standard of evidence required and the granting of DVOs on the basis that domestic violence might occur.

It’s easy to get caught up in the hype of this feel good legislation and only pay attention to the positive outcomes. The Specialist DV Court project in Southport and the police being more responsive to DV since the Now, Not Ever Report, has seen more perpetrators convicted of breaching DVOs. Doubtless, a number of victims have benefited greatly from the amendments to the law and the good work of the police.

However, the view that the world is a better place and that there have not been any ramifications for people who are innocent of committing DV is, to say the least, conveniently ignorant.

A proper hearing of an application, with both sides given the opportunity to present evidence before the determination of a temporary DVO is prudent, particularly in circumstances where a person is asking for somebody to be evicted from their home or for children to be included on DVOs where no parenting arrangements are in place for a parent to see their children.

However, it is with disappointment that we again see the legislation is seeking to go in the opposite direction and further supress the voice of respondents by taking away their ability to defend themselves, as a police officer can now make the call and issue a Protection Notice DVO.

The other change to the DV laws by this amendment is that the minimum of 2 year orders have now been increased to 5 years that is to say unless there are reasons to the contrary, a DVO will now be 5 years mandatory and not 2 years. Perhaps, I will simplify the debate and say yes there are a lot of cases where 2 years is not long enough, but there are also a lot of cases where 5 years is excessive. So perhaps rather than the wording aggressively imposing 5 years, it could have been written to say an order can be made between 0 – 5 years at the discretion of the court.

If you are experiencing a problem with domestic violence in your relationship you should contact the author, Michael Kilmartin to discuss.