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Alert – New Domestic Violence Laws – Queensland

18 September 2012

New domestic violence laws started in Queensland on the 17 September 2012. These laws replace the Domestic and Family Violence Protection Act 1989 (Qld). The changes impact not only the definition of “domestic violence” but also, who can apply? who can be an applicant? and ultimately, the ease with which DV orders can be made.

This article outlines the changes, although it is important to understand that the changes are extensive and complex.

Main Objects:
The new laws are designed to:

  • maximise the safety, protection and wellbeing of people who fear or experience domestic violence and to minimise disruption to their lives; and
  • prevent or reduce domestic violence and the exposure of children to domestic violence; and

ensure that people who commit domestic violence are held accountable for their actions.

Change to the basic test:
Under the 1989 Act the 3 step test required the Court to be satisfied:

That the parties were in a “domestic relationship”;
That an act or a number of acts of domestic violence had occurred; and
That further acts of domestic violence were likely to occur.

Under the 2012 Act, the Court must now be satisfied that:

  1. A “relevant relationship” exists between the aggrieved and the respondent;
  2. The respondent has committed domestic violence against the aggrieved; and
  3. The protection order is necessary or desirable to protect the aggrieved from domestic violence.

Ground one: Relevant relationship
‘Relevant relationship’ is defined as either:

An intimate personal relationship; or

Family relationship; or

Informal care relationship.

“Intimate personal relationship” includes 3 types of relationships:

Spousal relationships;

Engagement relationships; and

Couple relationships.

The definition of ‘couple relationship’ provides a slightly wider definition under the new Act so that it is now possible to include a ‘cyber’ relationship where the parties live in different parts of the State and may have never physically met but are in daily contact with each other.

Ground two: Domestic violence
Perhaps the most significant change introduced by the new Act is the definition of ‘domestic violence’.

The ‘explanatory notes’ to the Act describes the definition in the new Act as one that “reflects the contemporary understanding of domestic violence”.

The new definition provides that:

  1. Domestic violence means behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that –
  2. Is physically or sexually abusive; or
  3. Is emotionally or psychologically abusive; or
  4. Is economically abusive; or
  5. Is threatening; or
  6. Is coercive; or
  7. In any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.

Examples:
The legislation then provides a non-exhaustive list of behaviours that would be included as ‘domestic violence’, i.e.:

Causing personal injury to a person or threatening to do so;

Coercing a person to engage in sexual activity or attempting to do so;

Damaging a person’s property or threatening to do so;

Depriving a person of the person’s liberty or threatening to do so;

Threatening a person with the death or injury of the person, a child, or someone else;

Threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;

Causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;

Unauthorised surveillance of a person (the unreasonable monitoring or tracking of the person’s movements, activities or interpersonal associations without the person’s consent, including by using technology);

Unlawful stalking.

This new definition is very similar to the definition of “family violence” in the Family Law Act which commenced on 7 June, 2012.

The “domestic violence’ definition is significantly wider than that under the old Act and makes it a lot easier to satisfy the Court that domestic violence has taken place.

Contrasting the ‘old’ with the ‘new’:
Wilful injury (old Act) vs Physically abusive (new Act).

It is no longer necessary to establish that an injury was sustained as a result of physical abuse, therefore being pushed would come under the definition of domestic violence whereas previously the aggrieved must have been caused some sort of injury as a result of physical violence.

Intimidation or harassment (old Act) vs Emotional, psychological, economical abuse (new Act).

The types of behaviours that can be included as domestic violence have been more clearly defined and there is no longer a need to try and establish that the behaviour amounted to ‘intimidation or harassment’ in order to have them included as ‘domestic violence’.

“in any other way controls or dominates the second person”. There is no comparison under the old Act and this part of the definition really leaves the Court open to deem any type of behaviour that is viewed subjectively by the aggrieved to be controlling or dominating, as being domestic violence.

Ground three: Necessary or desirable
It is stated in the explanatory notes of the Bill that replacing the word ‘likelihood’ with a requirement that the court be satisfied that an order is ‘necessary or desirable’ focuses the Court on the protective needs of the aggrieved and whether imposing conditions on the respondent’s behaviour is necessary or desirable to meet those needs.

The Act states that, in deciding whether a protection order is necessary or desirable, the Court:

  1. Must consider the principles of the legislation (in section 4);
  2. May consider whether a voluntary intervention order has previously been made against the respondent and whether the respondent has complied with the order.

A voluntary intervention order is one that requires the respondent to attend a perpetrators program, but it can only be made if the respondent:

  1. Is present in court; and
  2. Agrees to the order being made; and
  3. Agrees to comply with the order as made.

While the old Act provided a broad power for the Courts to impose conditions that it thought necessary in the interest of the aggrieved, it was not clear whether that power extended to ordering a respondent to attend a program or counselling. The new Act provides a clear power for the Court to make such an order.

Who can be protected by an Order?

The new Act clarifies who can be protected by an Order, as well as the aggrieved, i.e.:

  1. A child of the aggrieved;
  2. A child who usually lives with the aggrieved; (defined as a child who spends time at the residence of the aggrieved on a regular or on-going basis);
  3. A relative of the aggrieved;
  4. An associate of the aggrieved.

The new Act provides that when deciding whether to include a child as a ‘named person’ on an Order, the court must consider whether naming the child is necessary or desirable to protect the child from ‘being exposed’ to domestic violence.

“Exposed”:
The definition of ‘exposed’ also provides examples which include:

Overhearing threats of physical abuse;

Overhearing repeated derogatory taunts, including racial taunts;

Experiencing financial stress arising from economic abuse;

Seeing or hearing an assault;

Comforting or providing assistance to a person who has been physically abused;

Observing bruising or other injuries of a person who has been physically abused;

Cleaning up a site after property has been damaged;

Being present at a domestic violence incident that is attended by police officers.

This definition and examples are the same as those in the Family Law Act that started on 7 June 2012.

Types of Orders:
Ex-parte orders
An ex parte application is one which is made without being brought to the attention of the respondent.

There is a significant change to the test required to obtain ex-parte orders. Under the old Act, it had to appear to the Court that:

  1. The aggrieved (or a named person) was in danger of personal injury; or
  2. Property of the aggrieved (or a named person) was in danger of substantial damage.

The new test is merely whether the Court “is satisfied that the making of a temporary protection order despite the respondent having not been served with the application is necessary or desirable to protect the aggrieved, or another person named in the application, from domestic violence.”

As a result it is likely that temporary ex-parte orders will be easier to obtain.

Consent Orders
There have been different approaches amongst Magistrates towards the making of orders by consent under the old Act, particularly where the Court had to be satisfied that an act of domestic violence had occurred and was likely to occur before making an order, and whether an order could be made on a ‘without admission’ basis.

The new Act now removes this confusion, by imposing two requirements for the making of a consent order, i.e.:

  • The parties consent to the making of an Order, or the parties do not oppose the making of the order; and
  • The Court is satisfied that a ‘relevant relationship’ exists between the aggrieved and the respondent.

The Court does not need to be satisfied that there have been acts of domestic violence or that a protection order is ‘necessary or desirable’ in order to make an order by consent.

Family Court – Parenting Order
Under the new Act, there is a positive obligation for a domestic violence application to disclose any family law parenting order.

The Family Law Act authorises a Magistrate who is making or varying a domestic violence order to revive, vary, discharge or suspend a parenting order, having regard to whether contact with both parents is in the best interests of the child concerned.

The Court must not do so unless:

  • It also makes or varies a domestic violence order in the proceedings (whether or not by interim order); and
  • The Court has before it material that was not before the Court that made that order or injunction.

Penalties:
Penalties for breach of a domestic violence order have been increased. The maximum penalty has been increased from $4,000 or 1 year imprisonment to $6,000 or 2 years imprisonment. If an offence has been committed in the last five years the maximum penalty is $12,000 or 3 years imprisonment.

Section 180
Section 180 of the new Act provides that an aggrieved or named person does not aid, abet, counsel or procure an offence if they encourage or permit or authorise conduct by the respondent that contravenes the domestic violence order, police protection notice or release conditions.

This section is designed to ensure that aggrieved persons are not charged as parties to offences.

Conclusion:
The changes to the Domestic Violence laws in Queensland are significant, they provide a much wider definition that will inevitably result in domestic violence orders being made more easily and more frequently. It is essential that anyone in such a situation gets Family Law advice, as soon as possible.

2019-04-23T14:45:28+10:00

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