People who have obtained domestic violence orders may still face attempts by their former partner to vary (change) the conditions of the order. This can be especially complex where children are involved. Courts must consider the wishes of the person the domestic violence order is designed to protect and only agree to the change if it is convinced there will be no negative impact on that person.
Rebecca had taken out a domestic violence order against her former partner Barry in 2018. Towards the end of 2020 Barry applied for a variation to the order, saying a change of conditions was necessary in order for him to see their children. Rebecca attended Caxton’s Domestic and Family Violence Duty Lawyer service. Caxton’s duty lawyer provided Rebecca with legal advice, appeared before the Magistrate and successfully stopped Barry’s efforts to obtain a temporary variation.
Barry’s application to vary the DV order was then adjourned for a hearing in early 2021.
In the time that the domestic violence order had been in place Barry had been found guilty of breaching it 3 times. The breaches included:
- continuously sending Rebecca harassing text messages and emails
- monitoring Rebecca’s movements
- emailing Rebecca’s boss with threats to commit suicide if Rebecca did not respond
- trying to collect the children from daycare without Rebecca’s agreement.
Despite being supportive of her children’s relationship with their father, Rebecca did not feel safe with the variations Barry was seeking. As a result of her experiences Rebecca was knowledgeable about court processes which she drew upon to draft her own affidavit. She then approached Caxton Legal Centre for legal advice about how to ensure her affidavit succinctly represented all of her points in an appropriate format.
Rebecca successfully represented herself at the hearing and the variations that Barry sought were denied. Rebecca was extremely relieved by the outcome.
Shortly after the hearing Rebecca emailed Caxton, stating:
“My deepest thanks for your help with my affidavit. I really appreciate that you listened to all of the details of my story and could put them into words suitable for the court. Caxton is an amazing service!”
Varying a domestic violence order
The aggrieved, the respondent, a named person, an authorised person, a person acting under another Act or a police officer may make an application to vary a domestic violence order.
Variations may be made to conditions, duration of, or persons named on the order (s 91 DFVP Act). A court can also vary a domestic violence order on its own initiative.
Before varying a domestic violence order, the things that the court must look at include why the order was made, any findings of fact that were made by a magistrate when the order was made and whether there has been compliance with any previous voluntary intervention order.
It must also consider the safety, protection and wellbeing of the people who are protected by the order, the wishes of the aggrieved and, if the variation is to reduce the duration of the order, that there are reasons for doing so (ss 91-92 DFVP Act).
Among other things, the court must be satisfied that the aggrieved has not been pressured into agreeing to the variation (s 92(2)(c) DFVP Act).
Caxton’s Family Law and Domestic and Family Violence Service
Appointments for Caxton Legal Centre’s Family Law Service can be made by telephone on (07) 3214 6333. No appointment is needed for Caxton’s Duty Lawyer Services which assists self-represented clients on the day they attend court. To access this service register with the Court Network staff outside the Domestic Violence Court on Level 6 in the Brisbane Magistrates Court building prior to your hearing.
More information about domestic violence orders can be found on Caxton Legal Centre’s Queensland Law Handbook website.