30 April

How do I change a domestic violence order that’s in place?

in Criminal Law & Offences, Domestic Violence

Are you the respondent in a domestic violence order that you want changed? A respondent is an individual who has been ordered to comply with a series of conditions.

Or, are you the aggrieved in a domestic violence matter seeking the order to be varied? An aggrieved is an individual who is protected under the domestic violence order. The conditions put in place are meant to protect this person’s safety and well-being.

What are Domestic Violence Orders?

Domestic violence orders are civil orders put in place to protect people against domestic violence. They can include a range of strict conditions and can be put in place from a starting point of five (5) years.

Here are some examples of the conditions that can be included in a domestic violence order:

That you must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved and/or named person(s);
That you are prohibited from contacting, attempting to contact, or asking someone else other than a lawyer to contact the aggrieved and/or named person(s);
You are prohibited from approaching, or attempting to approach within 100 meters of the aggrieved and/or named person(s) when at any place;
You are prohibited from approaching, or attempting to approach within 100 meters of where the aggrieved and/or named person(s) lives, works or frequents; and/or
You are prohibited from remaining at, entering or attempting to enter or approaching the matrimonial residence.

So, who can apply to change a domestic violence order, what in the domestic violence order can be changed, and what’s the process to vary a domestic violence order? Let’s find out!

Who can apply to vary a domestic violence order?

Under the Domestic and Family Violence Protection Act 2012 (QLD), a party to the domestic violence matter can make an application to vary an existing domestic violence order. This includes:

The aggrieved named in the domestic violence order;
The respondent named in the domestic violence order;
A person named in the domestic violence order (i.e. children, parents, siblings, new partners etc.);
An authorised person for the aggrieved; or
A police officer if the initial domestic violence order was put in place as a result of a police application for a protection order.

What can be changed in a domestic violence order?

From a respondent’s perspective, perhaps you want the domestic violence order varied to remove conditions, add in exceptions, remove people named in the domestic violence order or reduce the duration of the domestic violence order?

From an aggrieved’s perspective, maybe you want further conditions put in place in the domestic violence order. Perhaps you wish for the duration of the domestic violence order increased, or you want to add people to the domestic violence order (for example, if you have a new partner).

Ultimately, an application to vary a domestic violence order can relate to any aspect of the domestic violence order. Commonly we see applications to vary:

A condition in the domestic violence order;
An exception placed on a condition in the domestic violence order;
The people named in the domestic violence order; or
The duration of the domestic violence order.

Whether you’re a respondent, an aggrieved, or even a named person in a domestic violence order – if you’re seeking an aspect of the order to be varied, it is important that you obtain some legal advice to discuss your options prior to taking any steps.

What’s the process for filing an application to vary a protection order?

What Court will hear the application

Applications for domestic violence orders are heard in the Magistrates Court, and typically, the Magistrates Court where the initial domestic violence order was put in place.

What steps do I need to take?

If you would like to make an application to vary a domestic violence order, you will need to file in the Magistrates Court:

A Form DV04: Application to Vary a Protection Order; and
The supporting documents, which can include an affidavit from yourself and any exhibits detailing why you are seeking the domestic violence order be varied.

This is an important step in the process, and it is important that you obtain legal advice prior to filing any documentation in the Magistrates Court.

When can I file my material?

An application to vary a domestic violence order can be made any time after a domestic violence order (either temporary or final) has been put in place. In many (but not all) cases, the longer the domestic violence order has been put in place and the conditions complied with, the stronger your prospects are at varying the domestic violence order.

It is also important to note that an application to vary a domestic violence order can only be made in relation to a current domestic violence order. That is, the order cannot have expired, otherwise you will not be able to change it.

What happens once I have filed my material

Once you have filed your application to vary a domestic violence order and supporting material in the Magistrates Court, the registry will provide you with a mention date. You will be required to attend court on the date given to you.

On that date, the Court will hear your application. It is sometimes the case that your application will be heard and decided at the first mention date, or alternatively, it can be adjourned off to a later date.

If the other party is contesting (i.e. resisting) the application to vary the domestic violence order, the matter may be listed for a hearing.

What will the Court take into account when considering an application to vary a domestic violence order?

The court will firstly consider:

The grounds set out in the application to vary a domestic violence order; and
Any findings of the Magistrates Court that made the existing domestic violence order.

The law says that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, must be the most important consideration for the court.

If a Court considers that the proposed variation will negatively impact the safety, protection or wellbeing of the aggrieved or a named person, there are additional factors that the Court must consider. These include:

Any wishes expressed by the aggrieved;
Any current contact between the aggrieved or named person(s) and the respondent;
Whether any pressure has been applied (or threats made) to the aggrieved or named person(s); and
The principle that the safety, protection and wellbeing of people who fear or experience domestic violence is paramount.

Havin a domestic violence order relaxed

Are you a respondent that is tired of having stringent conditions put in place against you? You may be seeking to have the conditions of the domestic violence order relaxed (i.e. conditions be removed from the order).

If this is the case, it is important that you explain to the Court how the circumstances have changed between you and the aggrieved and/or named person(s) so that they are protected from domestic violence. This can include you having completed a domestic violence education course or some other form of rehabilitation.

The Court can only vary a domestic violence order if they consider that the safety, protection or wellbeing of the aggrieved or named person(s) would not be negatively affected by the proposed change.

Seek Legal Advice Today!

If you are considering making an application to vary a domestic violence order, you should seek legal advice at the earliest opportunity. We can review your material, provide you with our advice and assist you in preparing the application and supporting material.

Our team of DV lawyers have a wealth of experience in domestic violence matters and are able to provide a holistic approach to these complex situations. We can help you if you are in need of protection from violence in a relationship or if you have been charged with contravening a protection order that was made against you.