Contesting a DVO in QLD and what a hearing involves

Yes, you can contest a DVO in QLD. You tell the magistrate you oppose the order, a hearing gets listed, and a magistrate decides it after hearing evidence from both sides.

The harder question is what contesting costs you and whether it does what you want it to do. Most of what is written about contesting a DVO skips past that, so this article sets out what a contested hearing involves, from the mention where you say you oppose it through to the day itself.

Nobody can tell you how a contested hearing will end, but it is possible to explain what has to be proved, what you will be asked to do and how long it takes.

What the court has to be satisfied of

All three of the following have to be established before an order can be made against you. The first is that you and the other person are in a relationship the legislation covers. The second is that you have committed domestic violence against them, and the third is that an order is necessary or desirable to protect them. If you want the reference, that is section 37 of the Domestic and Family Violence Protection Act.

Most people focus entirely on the second one, because that is the part that feels like an accusation. In practice the third one decides a great many of these cases.

How the "necessary or desirable" test works

It is worth understanding this part before you decide anything. Even where something did happen, a court still has to be satisfied that an order is needed going forward. And even where you dispute most of what is alleged, a court can still find an order is necessary or desirable on what is left.

That makes a contested hearing wider than the straightforward argument about whether an incident happened that many people expect. Much of it is about risk from here, and things like whether you and the other person still have to deal with each other, whether there are children in common, and what has happened since the application was filed can all matter to it.

What happens if you contest

At the mention, you tell the magistrate you disagree with an order being made. Legal Aid Queensland describes that option simply as choosing to contest if you disagree with a domestic violence order being made. The court then sets a hearing date.

The hearing will not be next week. These matters get adjourned, directions get made about evidence and dates get found in a busy list, so a wait of months is normal.

In the meantime, there will very often be a temporary protection order running. That is the short term order a magistrate can make while the application is still on foot. It binds you exactly the way a final order would, and breaking it is a criminal offence in its own right. While you wait for the hearing, contesting usually means living under conditions for longer.

What your evidence has to do

Legal Aid Queensland describes the position for a final hearing as needing to prepare and give evidence about why the order should not be made. In most courts, a magistrate orders that the evidence be given to the registry beforehand. That includes affidavits, which are sworn statements, and things like photographs, medical certificates and reports, text messages, telephone logs and emails.

People tend to underestimate two consequences of that.

The first is that your account has to be in a form the court can use. A conversation with your lawyer about what happened is not evidence, whereas a sworn statement filed on time is. Messages sitting on a phone are not evidence until someone has pulled them properly and put them in a form that can be tendered. If your phone holds your case, do not let it get wiped, lost or upgraded before anyone has extracted what is on it.

The second is that you will give evidence yourself and you can be questioned on it, which is the part people are least prepared for. Sitting in a witness box in a public courtroom and being asked about the worst night of the last two years, by someone whose job is to test what you are saying, is hard. It is much harder if your sworn statement was written in a hurry or overstates anything, and an affidavit that goes further than you can hold up under questioning does more damage than a plain one.

You will not be the one questioning the other person. Many people dread this part most, so it needs clearing up early, because the fear of it stops some respondents from getting advice at all. Where you are not represented, the Domestic and Family Violence Protection Act treats the aggrieved as a protected witness automatically, and section 151 generally prevents you from cross-examining them in person. If there are questions that need to be put to them, the court arranges another way for that to happen so it does not come from you directly. Legal Aid Queensland can also grant representation for the specific purpose of cross-examining a protected witness in matters like these, which is a narrower form of help than a full grant, and you can ask about it by name.

Queensland Courts also notes that a hearing can take a whole day, and suggests arranging childcare in advance. It is a practical detail, but it gives a fair idea of what to plan for, which is a day off work in a courtroom rather than a five minute appearance.

If you say the allegations are wrong

Plenty of respondents come in saying the application does not describe what happened, or describes it in a way they do not accept. Being in that position is normal, and it is what a contested hearing exists for.

A hearing like that runs on evidence. The magistrate decides what they can be satisfied of on the material in front of them, and how upset either person sounds is beside the point. Most of the useful work is unglamorous. It means getting the timeline straight and documented, finding the messages that show where you were, and identifying the people who saw something and can say so in a statement. It also means being precise about which specific allegations you dispute and which parts you do not, because a blanket denial of everything is usually less effective than a careful account of what did and did not happen.

You should also be honest with yourself about the difference between an allegation being wrong and an allegation being described in a way you find unfair. Those can feel similar, but they run very differently in a hearing.

If both of you have applied

Sometimes both people in a relationship end up applying for orders against each other. Courts call these cross applications, and they are dealt with differently from two unrelated cases.

The Queensland Courts domestic violence benchbook sets out the principle that applies. Where there are conflicting allegations, the person who is most in need of protection should be identified, and only one order protecting that person should be in force, unless in exceptional circumstances there is clear evidence that each person is in need of protection from the other.

The court's task is to work out who, on the evidence, is the person most in need of protection, rather than to run two applications side by side and see what sticks. That changes what a cross application is for, and it is a reason to get advice before filing one rather than after. A court is being asked to tell apart a cross application filed as a reflex, or as a bargaining tool, from one that reflects a real need for protection.

What happens if you do not turn up

The court can make the order without you. Queensland Courts states that if you miss your court date, the court can make a temporary or full protection order in your absence, and Legal Aid Queensland says the same.

Not appearing will not help you, so if you cannot be there on the day, deal with that beforehand.

Deciding whether to contest

Base this decision on what you are trying to protect rather than on how the application makes you feel.

Contesting can be the right call where the allegations are disputed and an order would do real damage to your work or your life, and where there is evidence to put in front of a court rather than just a strong sense of injustice.

It can be the wrong call where the practical difference between an order being made and not being made is small, where the conditions being sought are ones you could live with, or where the process itself would cost you more than the order would. Understand the alternatives properly before you commit. Consenting without admitting the allegations is one of them, and our page on responding to a domestic violence order sets out how each of the options at a mention works.

A negotiation about what goes in the order is often more productive than a fight about whether an order is made at all. The conditions are frequently where the damage sits, and they are often more negotiable than the order itself.

If you have a mention coming up at Cairns Magistrates Court

The choice you make at a first mention shapes the next several years, and a corridor outside a courtroom is a bad place to make it cold.

We act for respondents in domestic and family violence matters in Cairns and across Far North Queensland, including contested hearings. Understanding what is being sought, and what contesting would involve in your situation, is best done before your court date.

If a domestic violence order application in Cairns is heading towards a contested hearing, speak with us before the mention.