QLD How to Apply for Domestic Violence Order to Include Children?

[Gabby Parker]

I had a Domestic Violence temporary protection order against my former husband which included myself and our children. Since the split, he became less volatile towards the children, so when it came to pursuing the order, I took their offer of good behaviour with no admission with the removal of the children as he would not agree to that.

I thought at the time the children were safe with him. Last night whilst on an access visit, I got a distraught phone call from one of the children. He had displayed aggressive and frightening behaviour towards my eldest daughter leaving the children fearing for their safety. They asked me to come and get them which I did. I do not want him to have the children again alone.

What are the ages that they can decide for themselves? Should I apply for a Domestic Violence order for the children to the Magistrates Court or apply through the Family Court?

There are no parenting or access orders in place. We were discharged from mediation. we were not considered good candidates for it and we have been working out access between ourselves.

 

[AllForHer]

There's no specific age when kids can determine their own care arrangements, but generally speaking, the older the child, the more weight the court will give their opinion. It depends on the child, but in many cases for children above the age of 12, the orders are to the effect of 'that the child spends time with the parent in accordance with their wishes'.

A parenting order from the Family Court or the Federal Circuit Court trumps a domestic violence order, so even if the children are named on a protection order, if he pursues parenting orders through the court and is granted time with the children, then him spending time with the children will not constitute a breach of the protection order.

Thus, in response to your question about which court to file through, an application for a domestic violence order is filed through the Magistrates Court, and an application for parenting orders is filed through the Family Court (for complicated matters) or the Federal Circuit Court (for less complicated matters). Of the two, it's the parenting orders that are more effective in restricting a parent's time with a child, but a domestic violence order will ensure there are repercussions should the father commit any acts of domestic violence in front of the children.

If you have already attempted mediation, you should have received the s60I certificate that will enable you to file for parenting orders. These certificates remain valid for 12 months.

 

[Gabby Parker]

My initial protection order covered myself and the children were listed. When we went to the hearing day, I took his offer of good behaviour without admission with the condition the children were removed from the order. He was behaving towards them at the time.

Since the kids haven't been covered by any court order, he has frightened and upset them on many occasions with yesterday being the worst. I am not sure if applying for a domestic violence protection order for children is allowed through the Magistrate's Court. And if I need to apply through the Family Court, do I require a lawyer? I won't be eligible for legal aid and I do not have money to pay a lawyer.

 

[AllForHer]

You can apply to vary the domestic violence order through the Magistrates Court to include the children, but this won't necessarily stop him from seeing them.

While a legal representative is always the best option, you can self-represent in family law proceedings if you wish.