4 Common Defences Against Domestic Violence Orders in Queensland

Domestic Violence Orders (DVOs)(Final Protection Orders) can have serious and long-lasting consequences that can impact a person’s freedom, employment, child-custody arrangements, weapons licence and future interactions with police.

If you have been served with an Application for a Protection Order in Queensland, it is crucial to understand that you do have the right to defend yourself when the allegations are inaccurate, misleading, or unsupported by evidence. Sometimes, the police may even identify the wrong party as the perpetrator when they are the true victim.

At Elysian Law, we regularly act for respondents who wish to challenge domestic violence claims.

Below are the four most common defence strategies used to contest DVO applications in the Magistrates Court.

1. Challenging the Evidence

A Protection Order can only be made if the Court is satisfied that:

1. A relevant relationship exists;
2. Domestic violence occurred; and
3. An order is necessary or desirable to protect the aggrieved.

A Court can only be satisfied of these three legal elements if the applicant party has submitted evidence that proves each element on the ‘balance of probabilities’.

A strong defence begins with testing the evidence presented by the aggrieved (and any witnesses). This can include:

Inconsistencies in the aggrieved’s statement;
Lack of corroborating evidence (texts, photos, medical records, police
reports);
Unreliable or contradictory witness accounts;
Hearsay;
Unable to state clearly what the allegation is (date, time, place, what)
Possible motive (example child custody); and/or
Conduct by the aggrieved that does not match the alleged fear or risk.

Case Example:
In a recent application, the aggrieved claimed the respondent had pushed her into a door whilst on holiday. However, in cross examination, it was proven she was heavily intoxicated and had been drinking for hours. Further, she had been aggressive with staff and asked to leave the venue in which the allegation had occurred immediately after in the toilet. The aggrieved had no memory of this event and was angry with the respondent for not buying her enough gifts that day.

Effective challenge to evidence often involves subpoenaing documents, cross-examining witnesses, and highlighting gaps in the aggrieved’s narrative.

2. False or Exaggerated Allegations

Unfortunately, DVO applications are sometimes used:

during relationship breakdowns;
as leverage in parenting disputes;
to gain advantage in property negotiations; and/or
to punish or retaliate after a conflict.

The Court and Police sees these behaviours more often than people realise.

Signs that allegations may be false or exaggerated include:

claims raised only after separation or a legal dispute;
historical incidents suddenly “remembered”;
allegations not reported to police despite being serious;
absence of evidence that would normally be expected; and
behaviour by the aggrieved that contradicts their stated fear (e.g., continuing to contact the respondent).

Case Example:
In one Queensland proceeding, the aggrieved alleged repeated threats and aggression over weeks. However, evidence showed she continued voluntarily staying at the respondent’s home, had initiated contact dozens of times and asked for free help on her car and money. Once the respondent refused to assist, the aggrieved made an exaggerated complaint to friends about his behaviour and a police complaint was made on her behalf.

The Court considered the application retaliatory; there was no relevant relationship and dismissed it.

A strong defence gathers objective evidence—messages, call logs, location data, witness accounts—to demonstrate the allegations are not credible.

3. Self-Defence or Other Legal Justifications

A respondent may still defend a Final Protection Order even if an incident occurred, provided their actions were justified. Criminal defences do not apply to civil applications for a Protection Order, however a Court must consider the context of the incident and ‘who is most at risk of future acts of domestic violence’.

This defence can be complex and often comes down to how witnesses present at the hearing.

Common justifications include:
1. self-defence;
2. defending property;
3. preventing harm to a child or another person; or
4. acting under duress.

Case Example:

The aggrieved alleged “assault” because the respondent pushed past her. Evidence showed she was blocking his exit and had struck him first. He had repeatedly asked her to allow him to leave the room. The Court accepted the respondent did not commit an act of domestic violence and dismissed the application.

4. Question of Ongoing Risk

Even if the Court finds that an act/s of domestic violence occurred, a Final Protection Order cannot be made unless the Magistrate is satisfied an order is necessary or desirable to protect the aggrieved from real future acts of domestic violence.

This is often a case-by-case assessment in which the Court looks at how serious the act of domestic was and what are the future circumstances, what is the future connection between the parties. It’s important to understand why/motive for the act of domestic violence occurring in the first place e.g mental health, custody access dispute.

The defence can argue:

there is no future threat or ongoing risk;
the parties have separated and have limited/controlled contact;
counselling, behaviour change programs, or other steps have
addressed any risk;
the incident was isolated and unlikely to recur; or
the aggrieved has no genuine fear.

It is legally possible for domestic violence to have occurred without a Protection Order being made if a future risk does not exist.

6 Steps of the Final Protection Orders Court Process

Application Filed – This can be a filed application with the help of a
lawyer or after an incident with Police.
Service of Application – Respondent receives the documents.
First Mention – The Court asks whether the respondent wishes to consent, contest, or seek adjournment/legal advice. A Temporary Protection Order will always be considered at the first mention of an application.
Directions Hearing – If contested, the Magistrate may order:
- filing of affidavits of any witnesses
- subpoena requests
- disclosure of evidence
Final Hearing (Trial) – Both sides give evidence and are cross-examined. This stage can be very complex. We have had greater outcomes when we are properly prepared, have engaged a barrister early and have a defence strategy.
Court Decision – The Magistrate dismisses the application or makes a Protection Order (typically 5 years) after hearing all the evidence and closing legal submissions.

A respondent is entitled to a fair hearing and to challenge every part of the allegations.

Why It’s Important to Have Legal Representation

Domestic violence applications can be complex, emotional, legally
technical and have wider implication on other proceedings (family law and employment).

Without legal representation, respondents often unintentionally:

make admissions in affidavits;
provide unnecessary information;
fail to obtain key evidence;
misunderstand the legal definition of “domestic violence”;
consent to orders they do not need; and/or
damage their legal position in relation to other areas of law (family law and employment).

A lawyer experienced in Queensland domestic violence matters will:

1. prepare stronger affidavit material;
2. subpoena crucial evidence;
3. identify weak allegations;
4. negotiate undertakings or amendments;
5. represent you in Court;
6. provide you peace of mind and limit the mental toll;
7. protect you from self-incrimination; and
8. safeguard your legal rights.

At Elysian Law, we defend respondents daily and understand the
importance of bringing the right evidence and strategy into the
courtroom.

For more information related to challenging domestic violence claims see these range of articles.

At Elysian Law, we understand the serious impact these matters can have on your personal and professional life. Our team is here to support you with expert legal representation tailored to your circumstances.