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QLD Domestic Violence Order - Miscarriage and Surgery are Extenuating Circumstances?

Discussion in 'Family Law Forum' started by NattyLevsha, 15 April 2015.

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  1. NattyLevsha

    NattyLevsha Member

    15 April 2015
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    After suffering a miscarriage and then having emergency surgery to remove one of my Fallopian tubes I was at my home with my now ex partner, I was trying to communicate with him about:

    A. what will be happening with a foster cat which he brought to our home. I was moving out and could not take it with me?
    B. what I should tell the landlord as I was moving out?

    He refused to speak to me and locked me out of the room he was in. In the highly hormonal and emotional state I was in I went into a rage and kicked the door in and started screaming at him to communicate with me. He then tried to leave at which point I got a steak knife and threatened to slash his tyres if he tried to leave without answering me.

    I am as shocked as anyone else with my actions and was not myself, I have no criminal record and have never been violent. He now has a DVO ( Domestic Violence Order) against me and I have to go to court tomorrow to say my side.

    What I want to know is if this can be passed off because of the state I was in? This happened 5 days after the miscarriage/surgery.

    Any other advice would be greatly appreciated too.
  2. AllForHer

    AllForHer Well-Known Member

    23 July 2014
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    Unfortunately, I don't think the argument of hormones will cut it in a court of law. The court decides based on evidence, so claiming a medical condition was a direct cause of your behaviour is not going to be persuasive unless you have expert evidence to back the claim up.

    I think it's important to understand though that domestic violence orders are not criminal hearings, but may be accompanied by an assault charge if carried out by the police. If this isn't the case and an assault charge hasn't been laid, then I think a different perspective on the DVO might be of use.

    A domestic violence order is an order that helps protect another person where there is a continuing risk of harm or exposure to domestic violence. It's not a criminal charge, and has no immediate consequences as it would if an assault charge was laid concurrently. However, if you were to breach the order, then you may face criminal charges, so it's best to do your utmost not to breach the order, should one be made by the court.

    There's a few ways you can respond to the application:

    1. Defend it - contest the application by proving the DVO is unnecessary as there is no continued risk of violence. I can't predict how effective an argument of this nature would be - if the behaviour is unpredictable, it's difficult to be persuaded that it won't happen again, and even so, I've seen judges who take the stance of "If it's no longer a risk, then there's no harm in making the order", in a better-to-be-safe-than-sorry act.

    2. Accept - accept the terms of the application wholly.

    3. Accept without admissions - accept the order without making any admissions that you are 'guilty' of the behaviour alleged in the application.

    4. Negotiate mutual undertakings with the other party, which is an agreement between you and the other party about how the issues will be addressed, but is not legally binding, so a breach won't result in criminal charges but will make it easier for the other party to pursue a DVO in future.

    Accepting without admissions is often the best path - it will cost less than defending a hearing and will have no consequences to you unless you breach the order. If the behaviour is not part of a pattern, then the risk of breaching the order should be low anyway.

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