The unintended consequences of consenting without admission to family violence intervention orders

A man and woman (couple) seated next to each other looking unhappy. He is in the foreground looking down with his hands clasped.

It is common practice for family violence intervention orders (IVOs) in family law matters to be resolved on a "without admission" basis. This often occurs in circumstances where the respondent strongly denies the allegations of family violence upon which the IVO is based. Consenting without admission often occurs for reasons of practicality, and is generally motivated by the respondent's desire to avoid the expense and delay associated with a final contested IVO hearing, particularly when the proper forum for the primary issues in dispute is the Federal Circuit and Family Court.

However, recent case law from the Administrative Appeals Tribunal (AAT) suggests that this approach may be problematic for clients who are not Australian citizens and who wish to apply for citizenship. S 21(2) of the Australian Citizenship Act 2007 (Cth) (Act) provides that a person is eligible to become an Australian citizen if the Minister is satisfied, among other things, that the person "is of good character at the time of the Minister's decision on the Application". S 25(2)(b)(iii) of the Act also provides that the Minister can cancel the approval of a citizenship applicant's application if they are found not to be of "good character". "Good character" is generally accepted to mean "...the enduring moral qualities of a person".1

Case law examples

The AAT case of Karatunov and Minister for Immigration and Border Protection [2017] AATA 132 (Karatunov) held that the existence of an IVO against a citizenship applicant can be a strong factor suggesting that the applicant is not of the requisite "good character". In making this finding, the Tribunal emphasised that family violence is contrary to the values of Australian society.2 Significantly, the Tribunal found that the applicant's consent without admission to the IVO (Domestic Violence Order or DVO in the Queensland context) was essentially irrelevant. In the words of the Tribunal:

"At the hearing, much was sought to be made on behalf of the Applicant that this DVO was made without admissions pursuant to s 51(1)(c) of the Domestic and Family Violence Protection Act 2012 (Qld). The central tenet of this submission was that the making of the DVO without admissions constituted no finding of domestic violence by the court. I have difficulty in seriously entertaining such a submission. To do so, would render the DVO nonsensical and without legal foundation. The point is that a DVO was made upon certain allegations and circumstances presented to the Court that, in turn, duly convinced it to make that order. Whether or not the allegations and circumstances giving rise to the DVO were either vigorously contested or otherwise consented to by the Applicant (on whatever basis) is of no concern to the Tribunal for present purposes. The point is that the DVO was made."

These remarks were cited with approval in the recent case of Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3093 (Singh), though the Tribunal in Singh also placed weight on the applicant's repeated contravention of the terms of the DVO, in addition to the bare fact of the DVO's existence, which of itself was held to raise "a query that the applicant [was] not of good character".3 Similarly, in Karatunov, the court emphasised the relevance of the specific nature of the offending leading to the DVO being made (the applicant threatening to kill his wife in the presence of his two daughters) as well as the applicant's subsequent breaches of the DVO (sending harassing and abusive text messages) and failure to notify the Department of Immigration of these breaches.

Notwithstanding the impact of other factors in both Karatunov and Singh, the Tribunal's findings regarding the irrelevance of an applicant's consent without admission to a DVO are concerning, particularly in light of the terms of the relevant Queensland legislation under consideration, the Domestic and Family Violence Protection Act 2012 (Qld). This legislation provides that the court may make a relevant "domestic violence order" by consent even if it is not satisfied of any of the matters in ss 37 and 45, namely the sections which outline the circumstances of which a court must be satisfied in order to make the relevant orders. Given that the court can make a DVO by consent without being satisfied that any wrongdoing has actually occurred, it is arguable that there is no proper basis for inferring any adverse character implications from a person's consent without admission to a DVO. The same could be said in the Victorian context, in which s 78 of the Family Violence Protection Act 2008 (Vic) empowers the court to make an IVO without being satisfied of any of the matters set out in ss 74 and 76 (which list the factual findings a court must make to order a final IVO).

The impact of decisions such as Karatunov and Singh is further alarming given that it is not uncommon for the responding party to be self-represented or to lack the financial means to contest the unfounded allegations.

Whilst other factors contributed to the finding that the respective applicants were not of "good character", the Tribunal was clear in both Karatunov and Singh that the very existence of the DVOs, regardless of whether they had been consented to without admission, was highly relevant. Given that the legislative scheme allows for these DVOs (and IVOs in Victoria) to be made without the court making any finding of wrongdoing, this is certainly an issue practitioners need to be mindful of when advising clients as to whether or not to consent to an IVO on a without admission basis, as serious immigration consequences may follow.

1 Karatunov and Minister for Immigration and Border Protection [2017] AATA 132 [11].

2 At [34]. This sentiment has also been confirmed in subsequent cases such as Kakos and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 571.

3 Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3093 [41].

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