DVOS and Child Access (QLD)
In Queensland, Domestic Violence Order (DVO) applications are governed by the Domestic and Family Violence Protection Act 2012 (QLD). This Act empowers courts to make domestic violence orders where there is a relevant relationship between the parties and there has been domestic violence and an order is necessary or desirable to protect the agrrieved from domestic violence (section 37). A DVO may limit the contact the respondent can have with their children; however, this is not always the case. Children are often included on a DVO where the protected person is the mother and any behaviours that are prohibited by the order in relation to the mother are also prohibited in relation to the children. This article outlines DVOs and child access in Queensland.
In Queensland, a child cannot apply for a DVO themself. However, where a parent makes an application, a child can be named as a ‘Protected Person’ under the same order. As a result, DVO applications can cause a great deal of concern for parents going through separation and family law proceedings. Parents who are restrained by a DVO often ask whether having the order in place will prevent them from seeing their children.
DVOS and Child Access – Definition of Domestic Violence
Domestic violence includes a broad range of behaviours and is not limited to physical and sexual violence. Section 8 of the Act defines ‘domestic violence’ as including emotional and psychological abuse, which intimidates or harasses the other party; economic abuse, such as limiting them from accessing money; using offensive or threatening behaviour or words; or any attempt to control the other party and/or cause them to fear for their well-being or safety. The violence can be directed at a partner, at the children, or both.
Who can make an Application for Protection?
Queensland Police can make a DVO application on behalf of an aggrieved person. Alternatively, the aggrieved themselves can make an application for protection. This can be done with or without the assistance of a lawyer.
What is a domestic relationship?
Before a Domestic Violence Order can be made, the court must be satisfied that a ‘relevant relationship’ exists. Relevant relationships are:
- An intimate personal relationship;
- A family relationship; or
- An informal care relationship.
This means that a person may apply for a DVO against their parent, child, sibling, partner, ex-partner or a person that the aggrieved regards as a relative.
DVOs and Child Access: Elements to Prove
When a DVO application is made and the respondent contests the application, the DVO can only be made if the Magistrate is satisfied that:
- acts of domestic violence have occurred; and
- it is necessary or desirable for an order to be made.
Types of DVO
A DVO can be made on either a temporary or final basis.
A Temporary DVO is usually granted on the first occasion the matter comes before the court and remains in force until a further order is made at a later hearing, or the court dismisses the application.
A final DVO is made for a stipulated period (usually five years) and will contain all conditions that the Magistrate deems appropriate. A Protection Order must contain the standard condition that the Respondent must be of good behaviour towards the protected person and their children.
Other common conditions sought include a condition restraining the Respondent from:
approaching the aggrieved spouse’s residence or workplace or places they normally frequent;
- having direct or indirect contact with the protected person;
- attempting to locate the protected person;
- approaching the protected person;
The usual duration for a Protection Order is 5 years. Submissions can be made as to why a shorter period should be ordered.
How a Final DVO is Made
If the parties agree to the orders being made, they are ‘orders made by consent without admissions.’ This means that the Respondent does not necessarily agree with the allegations contained in the Protection Order application, but consents to the court making an order. This is often referred to as a ‘Consent Without Admission.’
If an application is contested, a final order can be made only if the Magistrate is satisfied that the alleged acts of domestic violence occurred and that it is necessary or desirable for an order to be made.
Contravention of a DVO often results in criminal charges. The court takes contraventions very seriously. Penalties can range from a fine to imprisonment, depending on the seriousness of the breach and the offender’s criminal history. A criminal conviction is often recorded.
DVOs and Child Access – Is it Affected?
Having a DVO made against a person does not necessarily prevent them from seeing their children. However, having access to children after a DVO is made against you will depend on:
- The wording of the order;
- Whether parenting orders are in place; and
- The level of the alleged domestic violence.
Where there are no binding Parenting Orders in place and the children live with the aggrieved parent, that parent can limit the other parent’s access to the children by refusing to agree to any temporary access conditions. They can also refuse to enter into negotiations to establish Parenting Order conditions. In the absence of such agreement, a parent who is restricted by a DVO can effectively be prevented from seeing children until Parenting Orders are made allowing them access.
The parent who is the respondent in a DVO is limited in how they can access their children and must take care not to breach the DVO.
Obtaining Parenting Orders for Child Access
When a relationship breaks down between the parents of minor children it is often necessary to obtain legally binding orders setting out the arrangments for the children’s care. When there is a Parenting Order in place, this prevents a party from withholding the children or acting in breach of the orders.
If the parties cannot reach an agreement on parenting arrangements, the Federal Circuit and Family Court of Australia (FCFCA) can make a legally binding ‘Consent Orders’. These are court orders which the parties have agreed to, usually negotiated through lawyers or mediators, which are ultimately submitted to the court to seal and make binding.
If the parents cannot reach an agreement, parenting arrangements can be determined by the court. For this to occur, one party will need to commence court proceedings by filing an Initiating Application seeking parenting orders. Parenting Orders will not prevent the parent who is subject to the DVO from seeing their children unless there is a serious risk of child abuse or harm to the child.
The FCFCA has a duty to consider any risks of domestic violence and must consider any protection orders that are in place, even if the party who is subject to the order consented without admissions.
However, difficulties arise where the parent who is the protected person refuses to allow access to children to the other parent. Where this occurs, it is important that parents attempt to have Parenting Orders made as soon as possible after separation.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.