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DVO – Whitewashed

DVO

The age old adage that a DVO is not worth the paper it’s written on can no longer be accepted given that domestic violence has been high on the agenda in recent years. With all the emphasis on the protection of women and children, the men are being left feeling guilty until proven innocent. The ramifications of a DVO are real and include:

So before consenting to an order “without admissions” remember that a DVO is never without consequence or at least some inference that they must have done something wrong to deserve a DVO.

What's the process?

The current sequence at the DVO level as has been the experience of my male clients is that a former spouse will file a DVO application which will be accepted by the Magistrate on face value the same day and in their absence. The changes to the law in 2014 require a temporary protection order to be in place until the determination at a trial, such that any subsequent attempts to appear in court and contest the temporary DVO are negated by this provision. This is despite the fact that the allegations are often without foundation and a respondent has evidence that otherwise disproves the allegations and credibility of the applicant.

The respondent then has to appear in court to basically only tell the Magistrate that he consents to the DVO for two years or wishes to oppose the order in which case the parties will be asked to file affidavits and appear in court several months later for a trial.

What’s wrong with this you might ask? 

DVOs obtained under false pretences can have a devastating effect on the health and wellbeing of the respondent father and the children of the relationship who will be pressured into siding with one particular parent. Pre-adolescent children have a very black and white pattern of thinking, so if they are told a parent is “bad” then they may also see themselves as “bad”.

It pains me to see that the law has again been amended in December 2015, this time so that the Magistrates must consider making an ousting order to evict a perpetrator of domestic violence from the family home. Whilst theoretically the ousting of a perpetrator of domestic violence is entirely appropriate in some circumstances, when one considers that a party may then be left homeless or there may be other financial consequences, such as the inability to afford alternative accommodation on short notice in addition to paying the rent or mortgage at their former home, then the decision to remove a person from a property to which they have a legal and equitable interest should not be made lightly and only in the most extreme cases. It is not the kind of decision a Magistrate should be making without at least first hearing from the other party because as we all know “there are always two sides to a pancake no matter how flat it is”.

Male clients are advising me that they feel completely helpless and the financial consequences of defending vexatious DVOs are taking their toll, particularly as the awarding of costs in these matters is also rare. For every genuine victim of domestic violence, there are always those willing to abuse the system. Its only human nature and it cannot be denied that this does occur on a daily basis in Queensland.

Given the DVO whitewash they face from the beginning with no ability to defend themselves and a temporary DVO for at least 6 months, the question has to be asked, are we going too far and focusing too much on the aggrieved? Have we gone far enough with changing the procedure and should we go back to the basics of reviewing the evidence and testing the credibility of the parties at an early stage in the proceedings? Legislative reform of procedures will never alone fix the problem of domestic violence in our society. Domestic violence should be approached as a cultural phenomenon with education in schools from an early age and a change in attitude is what is required.

Michael Kilmartin,
Family Lawyer