Domestic Violence has, in recent years, taken centre stage in the family law dynamic, and appears to be being magnified by an attempt to change the national psyche.
Any allegation of Domestic Violence will inevitably change the way a family law dispute is viewed and managed.
Allegations of Domestic Violence are taken extremely seriously, and alter the entire character of the way the Court process works, so far as that particular matter is concerned.
Two important rules emerge from this:-
(i)??????????????? Make an allegation of Domestic Violence only if it is warranted.
(ii)????????????? Never, never, never admit to or concede an allegation of Domestic Violence if it is inappropriate to do so.
1.???????? MAKING AN ALLEGATION
It is common perception that there must be physical violence, where one party must strike another, in order for an allegation of Domestic Violence to be supported.? This is not so.? Any course of conduct or single act which has the effect of making a reasonable person fearful will be sufficient.? A complaint of Domestic Violence can be made through the Courts, and conducted by the parties or a law firm, or can be made by and conducted through the Police Service.? The Police have wide-ranging powers as a result of complaints or attendance at domestic disputes, to remove the party who seems a threat, to hold them in custody temporarily, and to conduct Domestic Violence applications, regardless of that party?s intentions.
Safety of the parties is paramount and the Police will act to remove any person who seems a threat.
You can also commence Domestic Violence proceedings, and it is reasonably easy to obtain an interim Order, given that Magistrates are far more likely to act with caution until all of the facts are known, and will make Orders (often mutual orders, that is, orders binding both parties), until there is an opportunity to have a hearing on the facts.
There is often pressure on parties to make mutual ?tit for tat? cross applications alleging Domestic Violence. ?This should only be done if the facts support such allegations.
Domestic Violence Hearings and Orders are a major distraction from obtaining final outcomes, and often stand in the way of getting matters resolved.? They can also be an enormous drain on funds, and if allegations are not later proven to be true, will seriously damage your prospects in related Court actions.
Simple things like the hand over of children to spend time with the other parent, become fraught with logistical problems and opportunities for parties to make allegations which ultimately simply waste money and time.?
Parties are often tempted to use Domestic Violence applications and interim Orders as a tool.? This can seriously backfire.? Interim Orders interfere with contact handover and unnecessarily complicate matters, if they are not necessary to regulate the contact of the parties.? They should be resisted as a tactic to ?get at? your Ex. It simply doesn?t work.? It?s a distraction, time and costs waster and can blow up in your face if the facts do not support you.
The parties are often under pressure to make what are called Consent Orders without admission.
This is, in effect, where the respondent (or both parties if there are cross applications) denies the allegation of Domestic Violence, but agrees to be bound by an Order to keep away from and have no contact with the Applicant.
You should resist the temptation to ?nod? to such an Order if the allegations against you are untrue.? These Consent Orders, even without admission, will cause major problems with the conduct of the main Family Court proceedings, and may prejudice or at the very least alter the course of contact with the parties and their children, and affect final resolution of the matter.
Conversely, allegations that are later proven to be unfounded can be seriously damaging to your credibility.?
The message is clear:-
(i)??????????????? only ever make an allegation if it is supported by fact;
(ii)????????????? do not consent to Orders, even without admission, unless it is appropriate to do so.
2.???????? THE COURT PROCESS
Domestic Violence hearings have 3 stages:-
(i)??????????????? Initial Order;
(ii)????????????? Interim Orders and Interim hearings;
(iii)???????????? Final Orders.*
3.???????? INITIAL PERIOD
Domestic violence orders can be initiated by one of other of the parties.? The process involves filing an application in the appropriate court and your adviser can draft the material for you. Often though the process starts with an event of violence or a domestic incident.
Police Officers have the power to obtain initial orders binding the parties until a Court can hear the matter.
This is usually overnight, or for very short periods of time.? Police attending a home will initially try to make a value judgment about removing someone from the site to prevent further possible violence.? If that decision is made then that person will be removed and police will seek to obtain an interim order preventing contact between the parties until a Magistrate can look at the facts.
The parties will then turn up to a ?first return date?. This is the first time that anyone actually looks at the facts.? Prior to this the only focus is on taking precautions to try to ensure that any violence stops.? Police will make that decision out of an abundance of caution and will be concerned about the consequences of not acting.? As a result it is very common for someone to be removed from the scene.
This does not mean that violence is proven.?
It simply provides a circuit breaker for the situation.
4.???????? INTERIM ORDERS AND INTERIM HEARINGS
Regardless of whether the matter is police initiated or by application filed by a party, the matter will then go before a Magistrate who will consider making an interim Order.
As I have previously mentioned, these Orders are made on very conservative grounds, and it is more likely than not, that an interim Order will be made.
Everyone appears at the local Magistrates Court on the morning of the first return date.? There are several possibilities for what happens on that date and it depends upon the attitude of the parties and to some extent the police (and certainly the Magistrate), as to what orders if any are ultimately made. There are three possibilities:
a)??? there are no orders made and the matter is dismissed (quite rare);
b)??? there are interim orders made and a final hearing date is set;
c)??? there are final orders made by consent.
It is possible though exceedingly rare that no orders are made at this first return date and the parties return to a situation as though police never attended or intervened.? Even if you or your partner withdraw the complaint, the police have the discretion to continue.? They will do so if they believe the complainant is being intimidated or overborne into making a decision to withdraw.
If the matter is not dismissed at this first date, then some orders will be made.
Whatever happens unfortunately there will not be a full examination of the relationship and the facts behind any incident on this first return date.
What will happen is that the parties representatives (or the police prosecutor if the parties are unrepresented), will have a look at the facts as alleged.
There will then be a discussion about whether some orders can be made by consent.
They can take many forms and have lots of variations.? They may in fact contain mutual obligations for the parties to remain away from each other.
If some kind of common ground on order can be found, then consent orders can be made.? These can be interim (until a full hearing can be held), or final.
Interim consent orders are the most common but if there is complete agreement on the way forward then final orders can be made by consent.? DO NOT CONSENT TO FINAL ORDERS WITHOUT UNDERSTANDING THE FULL CONSEQUENCES OF DOING SO.? Final orders have far reaching consequences.? They create obligations and problems which will stand for years.? They are difficult to undo or alter without the consent of your Ex (which may not be given).? Even if the orders are made ?Without Admission?, that is, without conceding that you?ve done anything wrong, they will affect not just the way contact with any children is conducted, it may affect how the rest of the finalization of the relationship is managed.
As I previously stated, there has been a trend in years gone by to encourage the parties to make ?mutual orders without admission?.? This means, so it?s claimed, that the parties effectively agree to stay away from each other without admitting any of the allegations made by the other.? This was a relatively easy way to dispose of the allegations on the first return date, either in an interim sense or in final orders, without going through the whole costly antagonistic process.? This was often sold to the parties as saving costs and ?getting on with the important stuff?.? This is the wrong way to look at what is a very serious matter.
Domestic violence orders can have a major affect on the shape duration and consequences of he entire process of unraveling a relationship.
Think carefully about the instructions you give your adviser.? Do not feel rushed and if you cannot make a decision you?re happy with, keep talking to your adviser and those close to you until you can.? Remember, your adviser is not there to demand that you do various things.? Your adviser is there to explain the law and circum stances to you, and make recommendations to you about what you CAN do.? You adviser is definitely not there to tell you what to do or put problems in your way.
Your adviser is required, after explaining the situation to you, to take and implement your instructions unless they are illegal or unethical.? If your adviser is unprepared to do that then he/she should withdraw and allow you to get another adviser.
Unfortunately some, even senior lawyers, do not know or forget this.
If there is not enough common ground for consent orders then, there may need to be, or the parties may require, an interim hearing.? This is, necessarily, less than a full-on examination of all the facts.? There will be argument from both parties some submissions regarding what Orders, if any, would be appropriate.
It is acknowledged that the parties will not have had any time to gather evidence, collect witnesses and prepare for a hearing.? For this reason final orders are not made on that day.?? You may feel a certain amount of frustration in not being able to ?have your say?.? Ultimately it is best for both parties if the facts to emerge once all the information is to hand and a proper examination of everything can be made.? This takes a little time.
At an interim hearing, the decision to be made is, ?what step will best put the matter into a holding pattern until a full review can be done?.? For this reason interim orders against one or both parties are very common.
It is an unfortunate side effect of this approach that many people have interim orders made against them in circumstances that are very superficial.? People are subject to the stigma of an interim domestic violence order based on only a cursory examination of the facts.? This is traumatizing and is even worse when children are involved.? Trying to explain this process to a small child is extremely difficult.? Contact (now called ?Spending Time?) with children almost universally means contact with the other parent, which, of course, can?t be done under interim or final orders.? Your adviser will have strategies and processes to go in the order to make this work.
The thought of ?engineering? an interim order might be tempting as a way of scoring points against an Ex but it immeasurably complicates the process and will make the prospects of getting a resolution plummet.? It is extremely dangerous to play with this process and there are severe penalties for being caught doing so.? You should only make a domestic violence complaint if there are grounds to do so.
One of the worst features of interim orders is the impression it gives some parties.? All sorts of feelings of revenge, alienation, superiority, and other impressions which act to move the parties further apart, spring from the (often wrong) impression of the rights granted at these interim hearings, to say nothing of the additional costs incurred.
Interim orders will, of necessity mean one party leaving the home, usually at no notice.? This can be a good thing in relationships of genuine fear and danger.? It can be the first real step in a realization that a relationship isn?t working.? It can also harden attitudes.
None of this should enter into your thinking of you are in danger or fear.
If you need to make a call to end violence an intimidation, do it.
If those Orders are not final and by consent, then those Orders will stand but the matter will be set down for a full hearing, and directions will be made by the Court as to dates for preparation and service of material to support or refute the allegations.
5.???????? FINAL ORDERS
At that final hearing, both parties will by then have filed affidavits and setting out their versions of the facts, but both parties will be required to be cross-examined on that material, and answer questions from their opponent?s legal adviser designed to disprove the allegations.
The Magistrate will then decide which version of the facts he or she accepts, and make orders accordingly.? The proof of the allegations is of the civil standard, that is, on the balance of probabilities.? This means that the Magistrate will only have to decide whether it was more likely than not that the allegations are true.? There is no requirement to prove the allegations beyond a reasonable doubt.?
It is a particular problem for the parties and the Court that most often, these allegations are of conduct between the parties in private, with no other witnesses, and are often alleged to have stretched over a period of time, making dates, times and places difficult to pin-point (and refute).
There is no requirement for corroborating evidence, (that is, some kind of independent evidence, for example, medical evidence, evidence of complaint at the time, or physical evidence), in order for the allegations to be accepted.? This introduces an element of jeopardy and almost chance into the Domestic Violence arena, which is unwelcome by the parties or the Court.? Nonetheless, it is present and has to be dealt with and considered by the parties.
6.??????????? APPEAL
There are only 4 grounds of appeal:-
(i)??????????????? That the Court has allowed evidence that should have been excluded.
(ii)????????????? The Court has excluded evidence that should have been allowed.
(iii)???????????? That the Court misunderstood the law.
(iv)???????????? That the Magistrate so misunderstood the facts as stated, that no reasonable person could have come to the conclusion that he or she did.
As you can see these appeal grounds are quite narrow.
Orders made will be expressed to exist for a particular period of time, and may be very, very specific, covering minimum distances of approach, specific areas or places which are not to be entered, and particular conduct which is not permitted.
On expiry of the orders, they can be extended depending upon the conduct of the parties in the interim.
7.???????? SIDE EFFECTS
Allegations of Domestic Violence can alter the way your family law dispute is conducted.? Matters affecting the children will be delayed, complicated and made far more expensive for all parties, by unfounded allegations.
Likewise, consenting to Orders relating to Domestic Violence, will slow down, complicate and make more expensive, all of the other dealings related to the dispute. ?Orders relating to contact with, maintenance of, and the residence of children will all have to be looked at and made more complicated by allegations made.
If this is required for the safety of the parties or the children then, so be it, and this is quite appropriate.
Using Domestic Violence as a weapon though, is often counter-productive and will harden the attitudes of all of the players to a resolution.? This will increase the chances of the matter becoming one of the 7% or so of disputes that goes to the delay and expense of a full Trial of all the property and children issues.
If you need to make an allegation for Domestic Violence in order to be safe and to make suitable arrangements for children, then do so, and stick to those allegations without watering down or embellishing them.? If not, resist the temptation to make unfounded allegations.
It is essential that, if your relationship has been marked by domestic violence, you take advice on structuring your termination of it and that you have a domestic violence safety plan before you make the break.? You should seek advice on how to do this.?
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