What will the Police do when there is alleged to be domestic violence?
Now more than ever, police will attend a home when they receive a phone call alleging a domestic violence incident. Once police are called, those involved can lose the power to decide how the matter is ultimately resolved, and there are some instances where police involvement may have unintended or unforeseen consequences.
Following the initial investigation at attendance, police may issue a Family Violence Safety Notice with conditions that are effective immediately, they may encourage one party to make an Application for a Family Violence Intervention Order or make one on their behalf, and of course they may proceed with criminal charges. In each case, if police action is not accepted by the parties, expert legal advice and representation is crucial to successfully challenging the police position.
Initial investigation at attendance
Police will usually respond in a timely matter when a phone call is place to report a complaint of domestic violence by one of the parties involved. Friends, neighbours, teachers or other community members might also alert police if they are concerned. When police attend, the safety of all parties is their first priority.
Police will take photographs and note their observations and conversations with those present. Any evidence will be collected and logged as exhibits. Police may request to see any relevant text messages or emails, and ask witnesses to make a statement about the incident. If medical treatment is required, police will ask for authority to access relevant medical treatment information.
It is important to seek expert legal advice from a criminal lawyer before talking to police, whether under arrest and prior to police interview, or prior to making a statement as a complainant/witness.
Police will take a complainant's wishes into account, however, police can take action even if a complainant does not want them to. If no other action is to be taken, appropriate referrals might be made to support services, such as the Men's Referral Service (https://www.ntv.org.au/).
Police will keep a record of their attendance for possible future domestic violence call outs to the same address.
Family Violence Safety Notice
My partner was yelling at me. I was holding onto her to try to calm her down. The neighbours heard her and called police. Now there is a Safety Notice in place, and even though she wants to see me, I can't contact her or go home.
Where police determine that someone needs urgent protection, they will take immediate action.
Police can apply for a Family Violence Safety Notice by telephone while they are still in attendance at an incident. This can be done even in circumstances where the other party does not want it.
A Safety Notice prohibits or restricts a respondent's behaviour. The conditions will include 'not to commit family violence'. It will likely also prohibit the respondent from any contact or communication with the protected person, and prohibit the respondent from remaining at the property. This can be a real shock to all parties.
When a Safety Notice is issued, it must be served on the respondent and the conditions explained. The Notice is filed with the Magistrates' Court, and a Court date set within five working days. If the Respondent breaches any of the conditions of the Notice, they can be arrested and charged with a criminal offence.
At the first Court date, a respondent can indicate that they intend to challenge the Notice filed by police and the making of a final Order. In some circumstances, the matter can be successfully challenged at a Contested Hearing before the Court. It is important to seek legal representation to best navigate the Court process, and for the greatest possibility of success.
Alternatively, the respondent can seek to negotiate conditions of a final Intervention Order. This can be done without making any admissions to committing the alleged behaviour. It is important that the respondent engage legal representation for effective negotiation if seeking resolution. A lawyer will also ensure that the respondent understands the effect of a final Intervention Order and each of the conditions prior to consent.
If served with a Safety Notice by police, it is important to seek legal advice to ensure that you understand your rights, your obligations and your options.
Further information about Safety Notices can be found at:
Application for a Family Violence Intervention Order
I was so grateful for police assistance and advice when I called them during an incident with my partner. I was so concerned about her behaviour towards and in front of the children. I think I'm going to make an Application for an Intervention Order against her to protect them.
When attending a domestic violence call out, police might encourage someone to make an Application for a Family Violence Intervention Order. Police can also make an application on someone's behalf, even if they do not want it.
A Family Violence Intervention Order is an Order of the Court that provides protection from one person against family violence from a family member. The Family Violence Protection Act 2008 defines 'family violence' to include sexual, physical, emotional, and financial abuse.
In the same way that a Safety Notice restricts a respondent's behaviour, a Family Violence Intervention Order will usually include conditions:
- Prohibiting the respondent from committing family violence against the protected person; and
- Excluding the respondent from the protected person's; and
- Prohibiting the respondent from approaching, telephoning, or otherwise contacting the person, unless in the company of a police officer or a specified person
At Court, the Application can be negotiated and resolved to agreed conditions. This can be without the respondent making any admissions about behaviour alleged in the Application.
Like a Safety Notice, an Application can also be challenged before the Court, whether it is a police Application on someone's behalf, or whether a protected person has made their own Application. When an Application is challenged, the Court will ultimately determine whether a final Order is necessary in all the circumstances following evidence at a Contested Hearing. Of course it is important to engage an experienced lawyer for representation if seeking to successfully contest an Application.
Respondents must be aware that findings made by the Court in Intervention Order matters can have implications in family law matters where children are involved. It can also impact Working With Children Checks and firearms licences.
An experienced lawyer will provide a respondent with legal advice and representation, either for the effective negotiation of a final Order, or to challenge an Application before the Court.
Further information about Family Violence Intervention Orders can be found at: Family Violence Intervention Order
Criminal charges
We've been married for 35 years. We argue a lot, we always have. This one time I called Police. Now they want to charge him for domestic violence and if they do, he'll lose his job. If I had known this would happen, maybe I wouldn't have called them.
When police are called regarding domestic violence and attend in response to a family violence incident, when police believe that an offence such as the causing of an injury or property damage has been committed, they will make an arrest either at the time of attendance or at a later date.
If arrested, it is important to ask why you are being arrested, to give your name and address, to be polite, and to ask to speak to a lawyer. It is also important not to make any statements in words or writing until you have spoken to a lawyer. It is crucial to seek legal advice from an expert criminal lawyer prior to police interview.
The decision about whether or not to ultimately proceed with criminal charges is a matter for police, and not for any individual involved in a family violence incident. It is often not clearly understood that from the one call out, police can issue civil proceedings by way of a Safety Notice or an Application for a Family Violence Intervention Order, as well as police charges in the criminal jurisdiction.
If criminal charges proceed, in order to be found guilty of an offence each charge must ultimately be proved beyond reasonable doubt before the Court. Of course this is not always the case.
A criminal lawyer can provide expert advice and legal representation to test the evidence and to challenge the police case. It's important to seek criminal law advice at the earliest possible stage, as a conviction can have a significant impact on a person's current employment, and their future prospects generally.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
