The children’s voice on domestic violence orders


Social Media Twitter Facebook LinkedIn

Nowadays, children are more and more frequently named in domestic violence orders, yet often children are not involved in the process.

Should children be informed of the application? Who is protecting their interests and where is their voice? This article explores the rights of children to be heard in DV applications and the legal test for the naming of children in domestic violence orders.

Section 146(1) of the Domestic and Family Violence Protection Act 2014 (the Act) provides a party to a proceeding has the right of appearance, themselves or by a lawyer (or in the case of a child, sometimes by a litigation guardian).  The term “party to a proceeding” would include children that may be named in the order. So children named in the application have a right to appear and have their views considered.

In fact, Rule 18(2) of the DFVP Rules provides if Court considers that it is necessary and appropriate, the Court may order that a copy of the application for the protection order be served on the named person. If the named person is a child, the Court must consider the following matters before making an order under subrule (2)— 

  1. the age of the child;
  2. the ability of the child to understand the DFVP application;
  3. whether the Court has dispensed with the requirement to give a copy of the DFVP application to a parent of the child under the DFVP Act, section 188(3);
  4. whether service of the copy of the DFVP application is in the best interests of the child; and
  5. whether the child is already aware of the proceeding or the circumstances giving rise to the proceeding.

In practice, it is often assumed that the named child is either:

  1. aware of the application and supports it, or
  2. unaware of the application and it is assumed they have no interest in it.

Yet a protection order is an order of the Court, and it can affect the child’s interests. A domestic violence order can have ramifications in family law proceedings about parenting arrangements and access of the child to both parents. Far too often there is no evidence presented before the Court of the child’s wishes.

Section 53 of the Act provides the Court may name a child in the order, if the Court is satisfied that naming the child is necessary or desirable to protect the child from domestic violence, or to protect the child from being exposed to domestic violence. 

In short, the Court has to find that naming the child in the order is necessary or desirable – It’s not just a ‘tick and flick’ situation.

In BM v CM & Anor [2020] QDC 30 [16], Judge Rachemann in overturning a Magistrates decision to name a child in an order, held that the task for a Magistrate:

…would necessarily involve an assessment of the risk of those matters in the absence of any order. The magnitude of the risk which would be sufficient to justify a conclusion that it is necessary or desirable to protect the child by naming the child in the order will depend on the circumstances, but the risk would need to be more than a bare possibility or a matter of mere speculation. The applicant’s fear of such a risk would not be sufficient. There would need to be a proper evidentiary basis for concluding that there was such a risk.

His Honour continued [31] and relevantly held that:

…a findings in relation to past conduct will be relevant to assessing future risk in order to conclude whether naming the child is necessary or desirable for the purpose stated in the section, however, section 53 requires more than just a finding that there are allegations or even proven incidents of past conduct of the kind described in section 53(a) or (b).

So in essence, to name a child on a protection order there must be a clear necessity to protect them from future domestic violence. Importantly, that finding of the court must be based on evidence and not mere speculation or the subjective fear of the aggrieved.

We may find in coming years that children are given more of a voice in domestic violence applications, due to the significant impact these applications have on family law proceedings.

  1. Photo Credit: Polina Zimmerman

This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact the Fisher Dore team.


left arrow round - Fisher Dore LawyersRight

Fisher Dore Lawyers have to be the best criminal lawyers in Queensland.


Great law firm. Technically brilliant, and focused on achieving the outcome that the client wants... and achieving it as quickly as possible.

Josh - Facebook Review
5 star icon - Fisher Dore Lawyers

Excellent representation - solid advice - great outcome.

Michael - Google Review
5 star icon - Fisher Dore Lawyers

Highly recommended. Real people. Respectful.

Sylvia - Google Review
5 star icon - Fisher Dore Lawyers

I’ve prosecuted against Nick Dore and I’m a fan of his work. If I ever needed a Defence solicitor in my corner, I’d choose him... what can I say, the man is brilliant.

Acts1power - Google Review
5 star icon - Fisher Dore Lawyers

Fisher Dore are Brisbane’s best law firm. Honest, genuine and (most importantly) competent lawyers who will help you achieve justice. I give them 10/10.

Moreish Food - Google Review
5 star icon - Fisher Dore Lawyers

Long term professional association. Established credibility and integrity. A pleasure to be involved in multidisciplinary team work in benefitting clients.

Alec - Google Review
5 star icon - Fisher Dore Lawyers

The only law firm I trust!

Kimberley - Google Review
5 star icon - Fisher Dore Lawyers

Friendly and professional. Highly recommend the team. Approachable and non-judgemental with a passion and extensive knowledge of what they do.

Rachael - Google Review
5 star icon - Fisher Dore Lawyers

This firm was so easy to talk to, compassionate, reliable and 100% hardworking. Thanks so much.

Mich - Google Review

We can't express how grateful we are for all your kindness, support and generosity during this difficult time. With sincere thanks.

Thank you Fisher Dore for all you have done to release the burden we have been living with...well done.

Just want to say thank you for all your help and effort you have put in. You go above and beyond. I appreciate everything you and your team have done for me in helping better my life!

Thanks again…for going above and beyond what I could have ever imagined. I am so grateful I can now get on the right track and move forward with my life.

Thank-you for all the hard work you have put into my case and your continued support throughout the last few months. I appreciate everything you have done for me.

Thank you for fighting for me and for doing such a great job. Please pass on my gratitude to the team.

Thank you for your compassion, dedication and hard work throughout this difficult time. This has been life changing for me and I can't imagine how I would have got through this without your support, professionalism and expertise. I'm so grateful for your efforts and the great work you did on my behalf. Thanks again for going above and beyond, and doing everything you could to win my case.

I just wanted to put into writing, just how profoundly grateful I am for the sound advice & skilful representation you provided. The outcome you secured for me was better than I could have dared to wish for. I owe you a debt of gratitude.

5 star icon - Fisher Dore Lawyers

I personally have known Mr Fisher for 20 years and in my opinion this firm is by far the best representation in Brisbane city and surrounding districts! My first pick always and best results from both Mr Fisher and Mr Dore and their team!! Thanks guys.

Mohammed - Google Review

I just wanted to say thank you very much for your handling of my case. I am very pleased with the outcome as well as your professionalism in communication and encouragement in my difficult time. Once again, thank you very much.

I want to thank you for looking after us both in a legal sense and in your sense of care. This has been enormously stressful. Having your diligent professionalism was greatly reassuring.

You will always be known to me and my family as the person who gave us the biggest gift we could ever want. Thank you, thank you, thank you.

Thank you so much for your amazing work. You have made a compelling argument for me and I believe my application was successful only because of your excellent work. You have always been very professional, punctual and provided me with accurate advice at all times. I am extremely grateful that I had you as my lawyer.

5 star icon - Fisher Dore Lawyers

Strongly recommend if you would like the best chance at freedom.

Alex - Google Review
5 star icon - Fisher Dore Lawyers

Thank you to the wonderful and professional team at Fisher Dore Lawyers. The experience you brought to the table was nothing but excellent, achieving an amazing result.

Andrew - Google Review
5 star icon - Fisher Dore Lawyers

When you want the best this is the number you call. They do it right the first time. Thanks Nick.

Dale - Google Review

We cannot thank you enough for the amazing outcome; it was so much better than we could have hoped for. Having a highly skilled professional such as yourself was so beneficial, thank you again.

5 star icon - Fisher Dore Lawyers

Professional but caring! Very informative and assisted in navigating me calmly through a very stressful situation. Very experienced. Highly recommend.

5 star icon - Fisher Dore Lawyers

Michael is a fighter, and a winner, to say the least. Truly amazing, words cannot express my gratitude. I had a complex situation, he was able to find a way through the puzzle.

James - Google Review
5 star icon - Fisher Dore Lawyers

Very friendly and professional. Perfect solution for your legal difficulties.

Syed - Google Review
5 star icon - Fisher Dore Lawyers

Mark - Google Review
5 star icon - Fisher Dore Lawyers

Amazing service! Professional, frank, straight forward and no nonsense legal advice you can rely on. Worth absolutely every dollar I've spent. Communication has been first class. I have felt really supported from the moment I engaged their services. So far, my experience has been entirely positive. If you are facing a tough case, and need the best of the best, look no further. I can't recommend this firm highly enough!

Judah - Google Review
5 star icon - Fisher Dore Lawyers

My experience with the firm relates to a common law claim for compensation, in which I was represented by Brendan and Steve and their associates. They did an absolutely amazing job and it was right in the very deepest of the pandemic that they assisted me. There was a fantastic result for me and the work done by the team was "above and beyond". In the very height of the unusual circumstances of the pandemic, these lawyers continued to provide the absolute highest standard of representation. My claim for compensation was related to circumstances of a sensitive nature. And the ability of the team to be compassionate, yet professional and focused on the details pertaining to a result was again "above and beyond". Brendan, especially stands out as a lawyer who not only understands the workings of law relating to compensation but also has the ability to relate and understand and act accordingly and appropriately to ensure a good result and at the same time providing a comfortable environment for a client like myself who has a claim relating to sensitive issues. Thanks so much Brendan. And thank you Fisher Dore lawyers.

Peter - Google Review
5 star icon - Fisher Dore Lawyers

I’m so happy I chose Fisher Dore. My lawyer Hamish was outstanding, professional, courteous, transparent and reliable from minute one. I cannot praise him enough; he fought hard to get the best result and kept me notified throughout. I always felt Hamish and his team were by my side. I highly recommend Fisher Dore as I am forever grateful to them.

5 star icon - Fisher Dore Lawyers

Extenuating circumstances led to a license cancellation due to previous criminal history. Antoinette and Tanya worked together to compile all the correspondence, facts and supporting evidence which led to my license being reinstated by the government agency. This was completed within a prompt time frame and their support through the process was outstanding. Highly recommend their services.

5 star icon - Fisher Dore Lawyers

Tom just about had a crystal ball, he knew what was likely to happen based on prior experience. This enabled a patient strategic approach to achieve a much better outcome than expected. I am still amazed at the final result. I am extremely grateful. Tom was professional, empathetic and a realist. Tom was tactical, strategic and patient. Tom engaged expert Counsel to negotiate reduced charges, including dropping a very serious fraud charge. Tom was thorough, maintained communication to keep me updated and showed attention to detail. I now appreciate the complexities of an adversarial legal system that is under pressure and the need for an expert criminal lawyer to navigate you through the process. My advice to anyone who is about to be questioned by police or who has been charged with a criminal offence is to contact Fisher Dore. Do not give up hope, trust their expertise and accept their advice and advocacy. Thank you Tom!

Close popup tab