Law Week 2012 hypothetical part 4

[Law Week Hypothetical 2012]
[Continues from part 3]

>> Kay McGrath: Okay, well Sam decides to go.

She's aware of all the support that's out there and provided, but she's fortunate and she decides to go and stay with her mum and dad - at her parents' house. She's going to stay there for a while and make sure that she and Lucas are both safe. So very lucky, as I said before, very lucky to have that family support - many people don't.

Now, meantime, the police decide to make an application for a domestic violence protection order on behalf of Samantha.

Now, when the police initiate an application for domestic violence protection order, the police prosecutor presents the application to the court. The police then serve Jacob with a copy of the application, which tells him when he needs to go to the Magistrates Court.

Let's go back to Fionna Fairbrother.

Fionna it's obviously sounding to me like it's time that Sam and Jacob both lawyered up, that they got some legal help.

>> Fionna Fairbrother: Well, luckily Samantha's got the police, and the prosecutor can help, so she may want to know what are her options but she probably won't need a lawyer for the court because the prosecutor will be there for her.

But definitely Jacob should get some legal advice.

He needs to take along the application because it will say what are the incidents of violence and so he can then work out what are the options for him, whether he wants to agree to the order or what are his options, so what he'd like to do.

So he can go to his own lawyer or he can come to Legal Aid.

Yes, so Legal Aid provides free legal advice so anyone can ring up to find out about that and you can get that advice either face-to-face or over the phone. So it's a very good service.

You can also go to - there's a lot of community legal centres. They also provide free legal advice and there's also the Women's Legal Service are there for, say if Samantha wanted to just also know some information but she can come to Legal Aid as well and get legal advice if the prosecutor wasn't representing her.

>> Kay McGrath: How long does that free legal assistance last? It's got to run out at some stage.

>> Fionna Fairbrother: It does.

So we really look at each individual and what's happening for them, so really - and there's no exact time limit but an advice normally takes about 30 minutes or so. We're quite well-trained in how to get that information out and also to provide what are the options for the client and what's the best option for them and that they can come along for at least three free legal advices. After that we might sort of look to see do they fit within our guidelines, should we be representing them, because we can't continue free legal advice all the way.

>> Kay Mcgrath: No.

Now we should point out at this stage that the QPS - Queensland Police Service - applied for this protection order on Samantha's behalf but you can actually apply directly to the court on your own.

But let's move on now, to the court process and I would imagine that it would be a rather daunting process for a woman. She's probably already traumatised, having been through this domestic violence. So what support is there for her in that court process?

>> Fionna Fairbrother: So if the police are representing her there's also domestic violence prevention workers that are in some selected court offices and there's a safe room at some of the courts as well.

>> Kay McGrath: What's a safe room exactly?

>> Fionna Fairbrother: So, the safe room is where, if she feels unsafe being in court, it's a secure room so that she doesn't need to see the perpetrator.

>> Kay McGrath: So she doesn't have to front him face-to-face?

>> Fionna Fairbrother: Yeah, and that the prosecutor will go into that room or will know that she's there and then she'll have a safe way into the court. So it's a way for her to feel comfortable so that she can tell the Magistrate what she needs to, if she was representing herself or the prosecutor's there for her.

>> Kay McGrath: She's probably not thinking straight. Does she get a hand with filling out various - I mean I'm sure there's lots of forms to be filled out.

>> Fionna Fairbrother: Yeah, if the prosecutor hadn't completed the application, yes, she would need to fill out her own application and it's quite a large document and women who are - they've just been through events of family violence so they're quite stressed and traumatised and they don't know what to put in the form, so they find that quite difficult to fill those forms out.

The domestic violence prevention workers can assist them with that or they can fill out the form and the come and get some legal advice and we can look through the form. We can give her advice about what evidence the Magistrate will look at, what's the most important events to put forward and what other evidence that she will need when it goes to court. She needs to understand that whole process because the person who's committed this violence will be in court and will be able to cross examine her.

>> Kay McGrath: Thank you Fionna.

You're normally on this side of the bench and it's time to introduce Judge Brendan Butler. Maybe I can ask you, Brendan, to give your experience from that side of the bench. How often do you see women come into a Magistrates Court who are very concerned about their personal safety because indeed, the perpetrator is in the same room as them, and how do you manage that as a Judge?

>> His Honour Judge Brendan Butler: I suppose most women in that situation are concerned. They're concerned about the courtroom situation, which they'll be unfamiliar with. That's pretty frightening in itself, and particularly where the perpetrator of domestic violence is present. They might still be very afraid of that person. So as Fionna said, we want people to feel safe in the courtroom.

In many of our courtrooms, the larger locations, there will be these safe rooms. Here in Brisbane, for example, there's a safe area. The woman would be directed to that area and be able to stay there, wouldn't have to have any contact with the respondent and then when her matter's ready to come on she would enter the courtroom through a separate door.

>> Kay McGrath: Are most respondents well behaved?

>> His Honour Judge Brendan Butler: Yes I think in the courtroom situation, because it's a fairly formal situation, most are quite well behaved but occasionally you get some that are very angry. I suppose it's a matter for Magistrates to be able to deal with that and to manage that situation.

>> Kay McGrath: Well, let's talk about Jacob now, in particular.

What are his options regarding this protection order application? Where does he stand?

>> His Honour Judge Brendan Butler: Well, of course, as a party in this civil proceeding in the court, he has rights as well and particularly if he's not legally represented, the Magistrate would explain to him what the options are for him.

I suppose, under the legislation, the parties can consent to an order being made and the first option for Jacob is whether he wants to do that.

Very often respondents - some are quite frank and will say well, yes, something did happen, I did hit her, I'm prepared to commit not to do that again and they're happy for an order to be made that no further domestic violence would occur.

Others don't want to admit to what has occurred but at the same time say, particularly where the two are separating, well, I don't want any more to do with her, I'm happy to consent to an order.

So that's the most straightforward way to deal with it.

If Jacob does know what he wants to do and he hasn't received legal assistance he might seek and be given an adjournment to get legal advice. Where an adjournment is allowed in a situation like that the Magistrate would have to consider whether a temporary protection order would be made. An order can be made for the interim period until the next court date.

Finally, if Jacob makes it plain and he's received legal advice that he wants to defend the matter, he's denying the allegations, well, then the matter would be set down for hearing at a later date and at that hearing it's necessary for evidence to be put before the court by both parties, and normally the Magistrate would make an order for statements to be provided before that hearing and witnesses can be called and both the parties can give evidence.

>> Kay McGrath: Okay, so just briefly, he can agree with a protection order, he can apply for an adjournment to get legal advice, or he can disagree and it can be put down for a future hearing.

Alright, well in this instance, Jacob decides to take ownership of his actions, and he agrees with the making of the protection order but decides to consent without admission, which mean he admits to some but not all of the details in the application against him, is that right?

>> His Honour Judge Brendan Butler: Yes.

>> Kay McGrath: What types of conditions can this protection order include to protect Samantha and Lucas?

>> His Honour Judge Brendan Butler: Yes, well there's a mandatory condition, which is the one that's been mentioned already, that there will be no further domestic violence and of course, if that condition were to be broken during the period of the order which is normally about two years, well then that is a breach of the order and we can talk about what happens where it's breached.

But the court has got the power to make many other conditions. Very often conditions are made that the respondent has to stay away from the aggrieved.

>> Kay McGrath: A certain distance - 100 metres, 200 metres?

>> His Honour Judge Brendan Butler: Yes well, the orders might be that he has to stay away from where she lives and works, can't go closer than 100 metres to either of those locations, that he can't contact her either directly or indirectly, and that would include telephoning, texting or whatever.

>> Kay McGrath: Social media.

>> His Honour Judge Brendan Butler: Yes.

>> Kay McGrath: He can't upload details about her or contact her through Facebook or Twitter or whatever. Also, it can apply to members of Samantha's family, yes?

>> His Honour Judge Brendan Butler: Yes that's right. Where they've been involved in the domestic violence, orders can be made for other people that there won't be any further violence against them and also to stay away from them and so on.

>> Kay McGrath: Okay, thank you, Brendan. Let's just - Fionna, can you clear up? How do all these conditions work when there is a child? We've got baby Lucas involved here. That gets a little bit more complicated, how does it work when there is a child or children involved?

>> Fionna Fairbrother: So, it can be quite complicated because they want to - the father would need to still collect the child.

>> Kay McGrath: He wants access to his child, that's right; nothing's been proven against him.

>> Fionna Fairbrother: Yeah and quite often a lot of the women want the father to have a relationship with the child. They just want it to be safe and they want changeover to be safe.

So it's important to understand that if they do reach a parenting agreement that that may be you're agreeing that it will override some of those orders that the Magistrate's made. That's important that it's quite practical that you're not placing yourself at risk.

So some of the conditions that the Magistrate's put in place can also be that there's an exception if they wanted to have a mediation at Legal Aid or a family relationship centre. So if they wanted to talk about parenting arrangements they can do that.

So it's not that a domestic violence order will prevent that relationship with the child.

>> Kay McGrath: So we're saying it can be tailor-made to suit different situations.

>> Fionna Fairbrother: Yes, and so it has to be very practical, whatever you put in place.

>> Kay McGrath: Okay.

[Part 4 ends – continues in part 5]

Last updated 30 October 2015