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Domestic and Family Violence Protection Act 2012 – 29 January 2016

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Domestic and Family Violence Protection Act 2012 – 29 January 2016

Domestic and Family Violence Protection Regulation 2012 – 17 September 2012

Domestic and Family Violence Protection Rules 2014 – 31 July 2015

Quick to view summary

A person in an intimate, family or informal care relationship who is threatened or subjected to violence, may apply in the approved form to the Magistrates Court for a protection order. Note: If there is an existing protection order in place and there is a new cross application, the court will need to be informed pursuant to section 41F of the Act.

  • Sections 8, 13, 220, 21, 22, 23, 24, 25, 26, 30, 32, 41F, 77, 138, 145, 146, 158

The Domestic and Family Violence Protection Rules 2014 apply to a proceeding in a Domestic and Family Violence Protection Court (exception: appeal proceedings).

  • Section 142; Rules 2, 3, 5, 6
Reason for law

To maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives. (Section 3)

Relevant links

End Domestic and Family Violence [Queensland Government]

Domestic and family violence [Queensland Courts]
Forms
Domestic violence videos

1800 Respect
Daisy App

DV Connect
Women’s Legal Service Queensland
Mens Line Australia
Salvos Legal
Legal Aid Queensland
Brisbane Domestic Violence Service
Ipswich Women’s Centre for Domestic Violence
Gold Coast – Domestic Violence Prevention Centre
Immigrant Women’s Support Service
Queensland Indigenous Family Violence Legal Service
RISE QLD
Queensland Domestic Violence Services
Relationships Australia Queensland
Life Without Barriers
NSW: Women’s Legal Services NSW
NSW: Immigrant Women’s Speakout Association

Help for tenants experiencing domestic and family violence [Queensland Government]

Trust your Instinct Campaign [Queensland Government]

Settling Disputes Out of Court [Queensland Government]

RizeUp Australia

Second Chance Programme – Placing Women Beyond Homelessness

Queensland: Family and Domestic Violence Data Collections [Australian Bureau of Statistics]
Violence publications [Crime and Corruption Commission]

Pets in Crisis [DV Connect]

White Ribbon
Fact sheets
Find an upcoming event

Kingfisher Foundation

Full Stop Foundation

Our Watch

Lady Musgrave Trust

One Million Stars to End Violence Project

The Good Men Project

Pregnancy Crisis Incorporated

NOT THE ONLY ONE

Crash Override [Online Abuse Help]

Australian Women Against Violence Alliance (AWAVA)

Friends with Dignity Australia

Rape & Domestic Violence Services Australia

Domestic Violence Conference [Stop Domestic Violence]

Queensland Centre for Domestic and Family Violence Research

Australia’s National Research Organisation for Women’s Safety

Mentors in Violence Prevention (Leadership Program) [Griffith University]

Magellan case management in the Family Court [Family Court of Australia]

International: Council of Europe – Convention on preventing and combating violence against women and domestic violence

Family and domestic violence reporting advisory guideline [Australian Press Council]

Australian Institute of Family Studies

Domestic and Family Violence Best Practice Guidelines [Queensland Law Society]

Suggested links

Graduate Certificate in Domestic Violence

UNiTE to END VIOLENCE AGAINST WOMEN

Critique

N/A

Podcast – Global Law Program

Interview with Kara Cook-Cook Legal – Global Law Program 16 20151230

Media Statement

Southport domestic and family violence court trial begins today 01.09.2015 [Queensland Government]
Second Magistrate Allocated to Domestic and Family Violence Magistrates Court trial at Southport 15.10.2015 [Queensland Government]
Southport domestic and family violence court trial extended 07.01.2016 [Queensland Government]
New services to help keep domestic violence victims safe 03.02.2016 [Queensland Government]
Now more than ever, we must say ‘Not Now, Not Ever’ [Queensland Government]
New legal service to help women and children [Attorney-General for Australia]
Tenancy database changes better protect domestic violence victims [Queensland Government]
Palaszczuk Government plan to address domestic and family violence [Queensland Government]
Expert board to review domestic violence deaths [Queensland Government]
New resource to assist victims of family violence [Attorney-General for Australia]
Palaszczuk Government drives domestic and family violence reforms [Queensland Government]
Qld Premier proposes National Employment Standard for domestic violence leave [Queensland Government]
It’s time for a national approach to domestic violence leave [Queensland Government]
New Criminal Offence to better protect Victims for Family Violence [Commonwealth Government]

Media article

QCAT: tenants experiencing domestic violence
Police use coffee to reach out on domestic violence
To stop domestic violence, we need to change perpetrators’ behaviour
UK experience of domestic violence disclosure schemes is a cautionary tale for Australia
Can private security companies improve responses to victims of family violence?
Queensland Government considering scheme to allow people to check family violence background of a partner
When care becomes control – financial abuse cuts across cultures

Suggested further reading
APL-SS Bulletin

2016-08 – Balancing the scales – protecting yourself against possible DV Order

Suggested Text Message
  • When you don’t know how to respond (maybe because you are afraid of the potential consequences): ‘Sorry I didn’t contact you earlier, I didn’t know how to reply to your message’. Might be useful to open up a line of communication.

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PLEASE NOTE: The information published on this webpage may be out-of-date. Please compare the currency date of the Act/Regulation against that published on the Office of the Queensland Parliamentary Counsel website. If you require access to Commonwealth statute law, please visit the ComLaw website. If you require access to the local council laws (by-laws), please visit the Local laws database.

Featured image from Flickr Commons – https://www.flickr.com/photos/usnationalarchives/4309063357

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Untested case law [Work In Progress]

Domestic Violence

In the Marriage of Schwarzkopff (1992) 15 Fam LR 545 at 555: The Crimes (Family Violence) Act, like its counterparts in the other states and the territories, underlines the view that instances of family violence should not be seen as less than crimes and that violence must not be trivialised simply because it occurs within a domestic or “private” context. This view is also reflected in the law’s rejection of any distinction between rape within marriage and rape outside of marriage. (See R v L (1991) 15 Fam LR 122, a decision of the High Court.) Personal relationships, especially within the family, are rightly protected by privacy, but that privacy must not be allowed to hide violence. Family violence is not a private matter and must be treated seriously by the courts, not only when prosecuted as a criminal offence in the ordinary way, but also where violence is an element of a breach of an order of the Family Court.

R v Wood [1994] QCA 297 at 5: Domestic violence orders imposing restraints of the kind involved here are practically speaking the only available means of curbing in advance conduct in the domestic context that is violent or is likely to lead to violence. Unless breaches of such orders are and are well known to be visited with appropriate severity, they will quickly lose their value in the minds both of those who obtain them and of those who are subject to them. Apart from the orders of that kind, the ordinary criminal law operating as it does only after the event arrives too late to be an effective deterrent. The wrong doer is liable to prosecution and punishment, but only after the injury has, sometimes with fatal consequences, already been inflicted.

Kennon v Kennon (1997) 22 Fam LR 1

Page 24: Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79. […] It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).

Page 67: The incidence of domestic violence in a marriage would generally be a relevant factor when the court comes to assess contributions pursuant to the provisions of s 79 for the reason that the contributions made by a party who has suffered domestic violence at the hands of the other party may be all the more onerous because of that violence and therefore attract additional weight.

Self v McIntyre & Peacock [1998] QSC 307 at [25]: […]  The making of a domestic violence order is in the nature of a civil proceeding rather than a criminal one. The actual making of the order carries no penalty but rather it prescribes certain behaviour which will attract a condition being imposed on future conduct. By s.9 of the DVA the standard of proof required is on the balance of probabilities. Itis only the infringement or breach of a domestic violence order which attracts a penalty which would properly be classified as a criminal proceeding.

R v Fairbrother; ex parte Attorney General (Qld) [2005] QCA 105 at [23]: Domestic violence is an insidious, prevalent and serious problem in our society. Victims are often too ashamed to publicly complain, partly because of misguided feelings of guilt and responsibility for the perpetrator’s actions. Members of the community are often reluctant to become involved in the personal relationships of others where domestic violence is concerned. Perpetrators of domestic violence often fail to have insight into the seriousness of their offending, claiming an entitlement to behave in that way or at least to be forgiven by the victim and to evade punishment by society. Domestic violence has a deleterious on-going impact not only on the immediate victim but on the victim’s wider family and ultimately on the whole of society. It is not solely a domestic issue; it is a crime against the State warranting salutary punishment. The cost to the community in terms of lost income and productivity, medical and psychological treatment and on-going social problems is immense. Perpetrators of serious acts of domestic violence must know that society will not tolerate such behaviour. They can expect the courts to impose significant sentences of imprisonment involving actual custody to deter not only individual offenders but also others who might otherwise think they can commit such acts with near impunity.

WJM v NRH [2013] QMC 12:

[21] I also observed that it may be necessary or desirable to make an order in order to protect an aggrieved person even if one of the grounds for finding that domestic violence has been committed by the respondent has ceased to exist. Also, if one reason why it is decided that a risk of future domestic violence is because of ongoing contact, such as in family court proceedings or because of other unresolved relationship issues, the order may need, in appropriate cases, to extend beyond the likely conclusion of those proceedings or resolution. […]

[28] The Act is protective legislation but it is not intended to be punitive for the respondent unless, of course, he breaches a protection order after it is made. Indeed the Act, in aiming to hold the perpetrators of domestic violence accountable also aims to ensure the person is given an opportunity to change their behaviour.

CAO v HAT [2013] QDC 42 at [48]: I notice the 2012 Act does not specifically provide for an application to revoke an order, although a person may apply for a variation of the duration of an order, to potentially the same end. Before a court may vary an order it must consider, among other things, the grounds set out in the application for a protection order and the findings of the court that made the domestic violence order. These provisions, found in s. 91 of the 2012 Act, copy parts of s. 35 of the 1989 Act. The considerations set out in s. 36 of the 1989 Act are also preserved – with respect to an application for a variation which the court considers ‘may adversely affect the safety, protection or well being of the aggrieved or any named person’– in s. 92 of the 2012 Act.

R v Wallace [2015] QCA 62 at [36]: “This case illustrates the importance for lawyers to be educated in the potential impact of domestic violence on its victims. Lawyers acting for those charged with criminal offences who claim to be victims of domestic violence should fully investigate those claims to determine their weight and relevance to the charged offending. If appropriate, they should obtain relevant evidence of the kind produced in this application and place it before the primary court, either as a possible defence or, as here, in mitigation of sentence.”

MDE v MLG & Queensland Police Service [2015] QDC 151:

[55] In my view, the third element of whether “the protection order is necessary or desirable to protect the aggrieved from domestic violence” requires a three stage process supported by a proper evidentiary basis (adduced pursuant to s 145 of the Act):

  1. Firstly, the court must assess the risk of future domestic violence between the parties in the absence of any order. There must evidence to make factual findings or draw inferences of the nature of, and prospect that domestic violence may occur in the future. This will depend upon the  particular circumstances of the case. Relevant considerations may include evidence of past domestic violence and conduct, genuine remorse, rehabilitation, medical treatment, physiological counselling, compliance with any voluntary temporary orders  (s 37(2)(2)), and changes of circumstances. Unlike, its predecessor provision under the now superseded legislation, the court does not need to be satisfied that future domestic violence is ‘likely’. However, there must be more than a mere possibility or speculation of the prospect of domestic violence.
  1. Secondly, the court must assess the need to protect the aggrieved from that domestic violence in the absence of any order. Relevant considerations may include evidence of the parties’ future personal and familial relationships, their places or residence and work, the size of the community in which they reside and the opportunities for direct and indirect contact and future communication, for example, in relation to children.
  1. Thirdly, the court must then consider whether imposing a protection order is “necessary or desirable” to protect the aggrieved from the domestic violence. In this regard, pursuant to s 37(2)(1), the court must consider the principles in s 4(1) that: (a) the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount; (b) people who fear or experience domestic violence, including children, should be treated with respect, and disruption to their lives minimised; (c) perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change; (d) if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics; (e) in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is most in need of protection should be identified; (f) a civil response under this Act should operate in conjunction with, not instead of, the criminal law.
  1. Finally, if the court is satisfied of the other pre-conditions of a relevant relationship and domestic violence are established, the court may exercise its discretion to make a protection order imposing appropriate prohibitions or restrictions on the behaviour of a respondent necessary or desirable to protect the aggrieved from the domestic violence.

CDM v GR [2015] QMC 15 at [7]:  I consider the ejusdem generis rule applies and that consideration of “any other relevant matter” in Section 92(2)(d) is confined to a consideration of the safety, protection or wellbeing of CDM and the named person.

LKL v BSL [2015] QDC 337

[11] The legislation makes it clear that formal rules of evidence do not apply but there still must be evidence in the sense of there being some material put before the Court which provides a rational basis for the determination and it must be put before the Court in a way which gives the opposite party the opportunity to challenge that evidence and put the opposite party’s case in relation to the matter. …

[18] … It is now established that the application is evidence capable of being taken into account by the Magistrate and it may be that the respondent sees fit to respond to it, and if so, he may be subjected to cross examination.

MHH v LAN [2016] QMC 1:

[18] For reasons that follow, I do not agree that this court exercising jurisdiction under the Act has the power to award indemnity costs as that term is commonly referred to. […]

[28] The Domestic and Family Violence Protection Rules 2014 (the rules) came into force on 28 February 2015. Part 7 of the rules, entitled “Costs”, provide how costs are to be assessed “if [this court] awards costs against a party under [the Act], section 157(2)”: rule 51. Contrary to LKF v MRR [2012] QDC 355, the statutory scheme now suggests that section 157 provides the source of power to award costs.

[29] The court can fix the amount of those costs or order they be assessed by a costs assessor: rules 52(1) & (2). For assessing costs under rule 52, a lawyer is entitled to charge and be allowed costs in accordance with “the scale of costs set out in schedule 1” (rule 52(3)) although a court can direct that costs be less than the costs set out in schedule 1: item 1(3) Part 1 Schedule 1.

[30] It should be still noted that the Justices Act 1886 continues to generally apply subject to inconsistency. Section 143(a) of the Act was not amended. However, given the changes made by the amending Act, the costs provisions of the Justices Act 1886 no longer apply as they are inconsistent with the costs provisions of the Act. […]

[33] Although under section 146(1) a party may be represented by a lawyer, section 157 of the Act essentially provides for a “no costs” jurisdiction with a limited ability to award costs. These competing considerations have been described in respect of an almost identical costs provision as striking a balance between “not discouraging citizens from approaching the court, while not leaving the door open to manifestly groundless actions”.

“Parental Alienation”

Re David (1997) 22 Fam LR 489 at page 506:

Where a parent is the residence parent pursuant to a [Residence Order], they have a clear obligation, not only to comply with the order, but to take all reasonable steps to ensure that a child is made available to the other parent for the purposes of contact in accordance with the order. All too often, such parents behave as this mother has done, and rely upon a child’s purported refusal or stated lack of desire to see the other parent, as a justification for denying contact.

However, in high conflict situations such as this one, it is frequently the case that the child is doing no more than seeking to adopt a position that he or she thinks will be the one desired by the parent concerned, because of the powerful position that such a parent occupies. To permit such a situation to continue is extremely damaging to such a child and should not be countenanced.

UDALL & OAKS [2010] FMCAfam 1482 at [83]: I respectfully agree with those authors. It concludes with this: When a parent’s attitudes and behaviour taint the child’s  relationship with their other parent, just as with physical abuse, the damage to the child is the same whether or not it is inflicted with conscious awareness and whether or not it is intentional. When parents are unable or unwilling to provide for their child’s welfare, the Court is obligated to intervene to protect the child.

Malave & Ratcliffe [2015] FCCA 201:

[517] Amy Baker, in her paper, explained the consequences to a child of feeling that one of his or her parents is bad. Because a child identifies with both of his or her parents, feeling that a parent is bad makes the child feel that he or she is bad as well. That has obvious consequences in terms of self-esteem, depression, drug and alcohol abuse, relationship difficulties and so on.

[518] Those consequences arise whether the favoured parent has deliberately alienated the rejected parent, or has verbally denigrated the rejected parent, or has impliedly condemned the rejected parent through actions. Those consequences arise whether the favoured parent has good motives, such as to protect the child from abuse, or bad motives, such as to punish the rejected parent for ending the parental relationship.

Related legislative provisions [Work In Progress]

DOMESTIC VIOLENCE

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