Domestic and Family Violence Protection

Act 2012

Preamble

• Domestic and family violence is a violation of human rights and not acceptable in Queensland

• Civil law responses and criminal law responses should operate together

• Perpetrators of domestic violence are solely responsible for their use of violence and its impacts on other people

• Domestic violence is the leading cause of homelessness for women and children

Principles

• Guide those involved in the administration of the legislation (e.g. courts, police, lawyers)

• Intended to recognise that some people are more likely to be victims of domestic violence (e.g. women, children, people with a disability)

• Ensure any processes (such as court proceedings) take into account a person’s vulnerability and assist their understanding of process

Principles

(1) This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount

(2) Subject to subsection (1), this Act is also to be administered under the following principles – (a) people who fear or experience domestic violence, including children, should be treated with

respect and disruption to their lives minimised; (b) 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; (c) 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; Examples of people who may be particularly vulnerable to domestic violence: o women o children o Aboriginal people and Torres Strait Islanders o people from a culturally or linguistically diverse background o people with a disabilityo people who are lesbian, gay, bisexual, transgender or intersex o elderly people.

(d) 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;

(e) a civil response under this Act should operate in conjunction with, not instead of, the criminal law.

Meaning of domestic and family violence

• New legislation provides more contemporary definition of domestic and family violence

• Defined as behaviour that: is physically or sexually abusive; is emotionally or psychologically abusive; is economically abusive; is threatening or coercive; or behaviour that in any other way controls or dominates a second person and causes them to fear for their safety or wellbeing or that of someone else

• The two people must be in a “relevant relationship” (i.e. intimate personal relationship, family relationship, or informal care relationship)

Meaning of associated domestic violence

• Behaviour by a perpetrator of violence towards child of aggrieved, child who usually lives with aggrieved, relative of aggrieved or associate of aggrieved

• Aims to ensure perpetrator cannot indirectly inflict further violence by harming or threatening to harm a loved one of the aggrieved and those who assist the aggrieved

Meaning of exposed to domestic violence

• Recognises that a child can be exposed to domestic violence if they see or hear, or otherwise experience effects of domestic violence (e.g. homelessness, witness the after effects of physical injury or property damage)

• Does not matter whether the perpetrator intended to expose the child to domestic violence or not

Meaning of emotional or psychological abuse

• Behaviour that torments, intimidates, harasses or is offensive to another person (e.g. derogatory taunts, repeated unwanted contact, preventing a person from keeping or maintaining relationships)

• Further examples provided in legislation but not limited to these examples

Meaning of economic abuse

• Situation in which a perpetrator uses money and other assets to control or dominate a victim

• Two broad categories of behaviour: 1. adversely affects a person by denying them economic or

financial autonomy2. places a person in a position where they cannot meet

reasonable living expenses • Examples distinguish reasonable behaviours from those which are

coercive, deceptive or unreasonably controlling• Civil burden of proof will not require parties to produce complicated

financial statements or reports

Meaning of relevant relationship

• For domestic and family violence to have occurred under the Act, the two people must be or have been in “relevant relationship”

• “Relevant relationship” defined by the Act as intimate personal relationship, family relationship or informal care relationship

Meaning of intimate personal relationship

• Under the Act intimate personal relationship to include spousal relationship, engagement relationship or couple relationship

• Further information about the kinds of relationships that are considered intimate personal relationships provided in the Act

Meaning of spousal relationship

• De facto partner based on provisions of the Acts Interpretation Act 1954 or

• Former spouse of the person or• Parent or former parent of a child of the person (regardless of

whether there is or was any relationship between the parents of the child)

Section 32DA Acts Interpretation Act 1954

• De facto partner is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but are not married to each other or related by family

• Further clarification provided in the Acts Interpretation Act 1954

Meaning of parent

• Child’s mother or father (including a person who under Aboriginal or Torres Strait Islander tradition is considered a parent of the child)

• Anyone else other than the chief executive (child protection) having or exercising parental responsibility for that child

• Does not include a person standing in place of a parent of the child on a temporary basis or an approved foster or kinship carer

Meaning of couple relationship

• New definition more accurately reflects contemporary relationships • Sets out various matters for court to consider when deciding

whether two people are or were in a couple relationship (e.g. degree of trust and level of dependence on, and commitment to, each other; degree of intimacy; frequency of contact; length of relationship)

• Couple relationship can exist even if it is not sexual or exclusive in nature, or the two people are of the same or a different gender

• Does not exist just because two people date or dated each other on a number of occasions

Meaning of family relationship and relative

• Family relationship exists between two people if one is or was the relative of the other

• Examples of relatives (or former relatives) include spouse, child (even if aged 18 or more), stepchild, parent, step-parent, sibling, grandparent, aunt, nephew, cousin, half-brother, mother-in-law or aunt-in-law

• The Act also provides for people who may have a wider concept of a relative relationship such as Aboriginal or Torres Strait Islander people

Meaning of informal care relationship

• A relationship between two persons where one is or was dependent on the other (their carer) for help in an activity of daily living (e.g. dressing or other personal grooming of a person, preparing a person’s meals or helping a person with eating meals)

• A relationship between a child and a parent of a child is not an informal care relationship

• Commercial arrangements are not informal care relationships (even if a person does not pay a fee for the help provided under the arrangement e.g. assistance by a voluntary organisation)

Meaning of aggrieved and respondent

• Aggrieved means the person for whose benefit a domestic violence order or a police protection notice is in force or may be made under the Act. Only one person can be named as the aggrieved in an application

• Respondent means the person against whom a domestic violence order or a police protection notice is in force or may be made under the Act. More than one person may be named as the respondent in an application for a domestic violence order or in a domestic violence order but only one person may be named as the respondent in a police protection notice

Children as aggrieved or respondent

• Child can only be named as aggrieved or respondent if an ‘intimate personal relationship’ or an ‘informal care relationship’ exists between the child and the other party named in the application, order or notice

• Matters involving children as an aggrieved or respondent ordinarily dealt with by the Children’s Court

• Child can be protected from domestic violence in the family home by being named on order which is made for the benefit of another person

Domestic Violence Orders• An order made by the court that includes conditions that restrain,

restrict and prohibit the behaviour of the respondent to prevent further domestic violence

• Can be either a protection order or a temporary protection order• Protection order is made by a Magistrate when they make a final

decision• Temporary protection order is made by a Magistrate for the

interim period before a final order is made.

Who can an order protect?

• Domestic violence order can protect: – aggrieved– child of the aggrieved– child who usually lives with the aggrieved – relative of the aggrieved– an associate of the aggrieved

• A person other than aggrieved named in domestic violence orders are known as “named person”

• The same conditions apply to named persons as to the aggrieved

Who can apply for an order?

• Protection orders can be requested by:– aggrieved– authorised person for the aggrieved (i.e. an adult authorised in

writing by the aggrieved to appear on their behalf, or an adult whom the court believes is authorised by the aggrieved to appear on their behalf even though the authority is not in writing)

– a police officer under section 100(2)(a) of the Act – a person acting under another Act for the aggrieved (i.e. an

eligible guardian under the Guardianship and Administration Act 2000 or an eligible attorney under the Powers of Attorney Act 1998)

– A party to a child protection proceeding, within that proceeding.

When can a court make a temporary protection order

• Court can make a temporary protection order if:– court adjourns a proceeding– applicant for a protection order has asked clerk of the court

(under section 36) for the application to be heard by the court before respondent is served

– applicant for the variation of a protection order has asked the clerk of the court (under section 90) for the application to be heard before respondent is served

– police officer applies for a temporary protection order (under part 4, division 4 of the Act)

Varying a Domestic Violence Order• If circumstances change after a domestic violence order is made, the

Act provides that a person can apply under section 86 for a variation of the order

• The Act provides the following examples to demonstrate where a variation may need to be considered:– A protection order is made that includes only the standard

conditions. The respondent commits further, and more serious, domestic violence against the aggrieved. An application to vary the protection order and include additional conditions in the order may be appropriate to give greater protection to the aggrieved

– A temporary protection order is made because of an application under section 129 by a police officer. The aggrieved’s place or residence is stated in the order as the premises that the respondent is prohibited from approaching. If the aggrieved’s place of residence changes, a variation of the temporary protection order may be sought under section 86 of the Act

Application for a Domestic Violence Order

• Applications must:– be in an approved form– state grounds on which the order is made– state nature of the order sought– be verified by the applicant using a statutory declaration form

(when applicant is not a police officer) – be filed in the Court

Service

• A police officer must personally serve copy of application on respondent

• The copy must state that if respondent does not appear in court:– a domestic violence order may be made in respondent’s

absence; or – court may issue a warrant for respondent to be taken into

custody by a police officer if necessary for respondent to be heard

• If a protection order application is made by a police officer, it can be served on the respondent before it is filed in court

Cross applications

• Two protection order applications (original application and cross application) have been made and are before court (either the same or different courts), and:– respondent in original application, named as aggrieved in cross

application– aggrieved in original application, named as respondent in cross

application• Either of the courts may order both applications to be dealt with by

the one court• Either of the courts may hear the original application and the cross

application together • The court hearing the cross application may take into account the

court records relating to the making of the protection order

When can a court make an order on its own initiative?

• When the court convicts the offender of an offence involving domestic violence• The court can only make or vary an order on its on initiative if reasonable

opportunity has been given to the:– offender– prosecuting authority for the offence– person who is or would be named as aggrieved in order (if reasonably

practicable)to present evidence and provide submissions on the making or varying of the order

• A court may make order or vary an order before the offender is discharged by the court or otherwise leaves the court, or adjourn the matter to a later fixed day and time (and may, in the meantime, make a temporary protection order)

• Generally, applications for domestic violence orders are heard in a closed court. However, if the court makes an order under this section of the Act, the matter is heard in an open court. The court retains the power to order a closed court, but a closed court is not automatic

Powers of the Children’s Court• A Childrens Court hearing a child protection proceeding may make

a protection order against the child’s parent, if the:– court is satisfied a protection order could be made against the

person and– person who would be named as the aggrieved in the order is

also a parent of the child• If a domestic violence order is in force against the child’s parent,

the court must consider the order and whether it needs to be varied, e.g. to change date order ends, or ensure terms of order are consistent with proposed order

• The court can only make or vary an order if reasonable opportunity has been given to each party to present evidence and provide submissions on the making or varying of the order

• This does not limit the power of the court to make any order under the Child Protection Act 1999

Temporary protection orders

• A court may make a temporary protection order if the:– court adjourns the hearing of an application for a protection

order or variation of a domestic violence order– court convicts a person of an offence involving domestic

violence and adjourns the decision whether to make or vary an order

– Children’s Court adjourns a hearing of an application for a domestic violence order during a child protection proceeding

– applicant for a protection order or variation to a protection order has asked for the application to be heard by the court before the respondent is served

– application for a temporary protection order is made to the court by a police officer under the Act

Consent orders• The Act provides that if parties to a proceeding for a domestic violence

order, or the variation of an order, consent or do not oppose to the making of the order, then the court may make the order:– if the court is satisfied that a relevant relationship exists between the

aggrieved and the respondent; and– without being satisfied that the respondent has committed domestic

violence against the aggrieved; and– whether or not the respondent admits to any or all of the particulars

of the application.• However, if the respondent is a child, then the court may make the order

only if the court is satisfied of the requirements for a protection order or temporary protection order

• Before making or varying a domestic violence order under this section, the Court may conduct a hearing in relation to the application if the Court considers it is in the interests of justice to do so

Naming persons in domestic violence orders

• The Court may name in a domestic violence order:– a relative or associate of the aggrieved if the court is

satisfied that this is necessary or desirable to protect the relative or associate from associated domestic violence, for example if the associate or a colleague have offered shelter to the aggrieved and the aggrieved is staying with them

– a child of the aggrieved, or a child who usually lives with the aggrieved, if the court is satisfied that this is necessary or desirable to protect the child from associated domestic violence or exposure to domestic violence

Court can request information about a child, aggrieved or respondent from the chief

executive (child protection):• The court may ask the chief executive (child protection) to provide

information about the child, the aggrieved or the respondent that the chief executive reasonably considers may help the court in deciding whether to name the child in the order or to impose a condition relating to the child:– where a court is considering an application for a protection order, or a

variation of a domestic violence order, that seeks to name a child in the order, or the court is considering naming a child in a protection order; and

– the respondent contests the naming of the child in the order or the imposition or any conditions concerning the child; and

– the court considers that the chief executive (child protection) may have information relating to the child, the aggrieved or the respondent that may help the court in deciding whether to name the child in the order or impose a condition relating to the child

Conditions of domestic violence orders

• Conditions include that the respondent:– be of good behaviour towards the aggrieved and not commit

domestic violence against the aggrieved; and– if the named person on the order is an adult:

o be of good behaviour towards and not commit associated domestic violence against the named person

– if the named person on the order is a child:o be of good behaviour towards and not commit associated

domestic violence against and not expose to domestic violence

What contact is allowed?

• A respondent can ask a lawyer to contact the aggrieved or named person, or another person, including a lawyer, to contact or locate the aggrieved or named person for a purpose authorised under the Act

• A condition imposed (under section 58) that prohibits a respondent from asking someone else to contact or to locate an aggrieved or named person does not prohibit a victim advocate from contacting or locating the aggrieved or name person if:– the purpose is to seek their consent to the provision of advocacy or

support; or the aggrieved or named person has consented to being contacted or located by a victim advocate and

– the victim advocate is not knowingly in direct contact with the respondent, and

– the respondent is participating in an approved intervention program by an approved provider

Unborn children

• If an aggrieved is pregnant, the court may impose a condition that takes effect when the child is born & requires the respondent to be of good behaviour towards and not commit associated domestic violence against the child or expose the child to domestic violence

• The court may impose the condition whether or not the respondent is the father of the child

Voluntary intervention orders: counselling or intervention program

• If a court makes or varies a domestic violence order, the court may make a voluntary intervention order that requires the respondent to attend an approved intervention program provided by an approved provider and/or counselling provided by an approved provider

• The voluntary intervention order must require the respondent to report to a stated approved provider at a stated place, and within a stated time, to allow the approved provider to assess their suitability to participate in the counselling or intervention program. If they are found suitable, they must attend the counselling or intervention program and comply with every reasonable direction given by the approved provider

Voluntary intervention orders: steps in process – order, suitability assessment, notices, contravention

• The court must explain to the respondent the purpose and effect of the order

• The court may make or amend a voluntary intervention order only if the respondent is present and agrees

• The approved provider assesses suitability to participate and advises the court

• If the order is contravened, the approved provider must notify the court and the police commissioner

Voluntary intervention orders Example of a minor contravention

• The respondent misses one session of counselling or the approved intervention program

• After being contacted by the provider, the respondent agrees to attend a make-up session

• The respondent goes on to attend all other sessions

Family law orders

• A Magistrates Court in Queensland has limited power to revive, vary or suspend a family law order when making a domestic violence order

• The Magistrates Court can exercise some powers under the Family Law Act 1975 to vary a parenting order for a child during domestic violence proceedings under the Domestic and Family Violence Protection Act 2012

Weapons

• The court is to provide as much information about weapons as possible on order

• If a person has a job which requires them to use a weapon and they are named as a respondent in an order, they cannot possess a weapon after they have been named a respondent in a domestic violence order

• Respondent must surrender all weapons licenses and weapons to a police officer as soon as practicable or a respondent may commit an offence against the Weapons Act

Ensuring the aggrieved and respondent understand the domestic violence order

• If the respondent is before the court, the court must ensure the respondent understands the purpose, terms and effect of the proposed order

• If the aggrieved is before the court, the court must ensure the aggrieved understands the purpose, terms and effect of the proposed order (eg. order may be enforceable in other States and New Zealand), and what may follow, if the respondent contravenes the proposed order

Functions of police officers• If a police officer reasonably suspects that domestic violence has been

committed, the police officer must investigate the complaint, report or circumstance on which the officer’s reasonable suspicion is based

• The police officer may have a range of possible responses (section 100) including:– apply to the court for a protection order or a variation of an order

(part 3 of Act);– issue a police protection notice (division 2, part 4 of Act);– take the respondent into custody (division 3, part 4 of Act);– apply to a magistrate for a temporary protection order (division 4,

part 4 of Act); – take any other appropriate action (e.g. take a respondent to hospital

to receive treatment necessary for their welfare);– take no further action - with appropriate written records to be made

and retained to document why this course of action is pursued

Police protection notices

• Issued when other responses not appropriate, for example:– taking a perpetrator who is a continuing danger to personal

safety into custody while an application for a domestic violence order is made; or

– applying directly to a magistrate after hours, usually by telephone, for a temporary protection order to be made

Police protection notices –when can they be made?

• A police officer can issue a police protection notice if they:– are present at the same location as the respondent– reasonably believe the respondent has committed domestic

violence– reasonably believes that no domestic violence order has been

made, or police protection notice issued, that names the respondent as a respondent or an aggrieved

– reasonably believes that a police protection notice is necessary or desirable to protect the aggrieved from domestic violence

– reasonably believes the respondent should not be taken into custody, and

– has obtained the approval of the supervising police officer to issue the notice

Police protection notices – conditions and information

Must include: • relevant contact details for the respondent • the grounds on which the police officer reasonably believes that domestic

violence has been committed, • the date and time for the hearing of the application before the Court Can include: • a ‘cool down’ condition, lasting no more than 24 hours, which will prohibit

the respondent from entering, or approaching within a stated distance of a nominated premises or aggrieved and contacting, attempting to contact or asking somebody else to contact the aggrieved

The officer must also consider the accommodation needs of the respondent

and if they believe the respondent is a child, they must arrange temporaryaccommodation

Taking a person into custody

• Detention period is limited to up to four hours from when the person is first taken into custody

• A police officer is able to take a respondent to a ‘place of treatment’ or ‘place of safety’ during the detention

• A police officer is able to apply to a magistrate to extend the four hour detention period to a total of eight hours when it is necessary to complete arrangements for the safety of the aggrieved, or the respondent’s behaviour continues to present a danger of personal injury or property damage or when the respondent is under the effects of drugs or alcohol.

Taking a child into custody

• A child should only be taken into custody as a last resort and for the least time justified in the circumstances

• The child must be held separately from any adults being held at the same place

• A parent, or the chief executive (child safety) if the child is in the custody or guardianship of the chief executive under the Child Protection Act 1999, must be notified that the child has been taken into custody

Other police powers

• Direct a person to remain at an appropriate place for one hour or a longer reasonably necessary time in order for the police officer to serve the respondent with a copy of an order, or to advise of the existence and conditions of an order

• Police who come across a respondent when conducting other duties, such as random breath testing, may use this opportunity to ensure an order is enforceable if the officer believes the respondent may not remain while the order is read out to them

• Police will not have to use these powers every time they attempt to serve a respondent - only when the officer suspects the respondent will not cooperate to be served

Court proceedings

• Jurisdiction to hear and decide any application made to the Court under the Act and to perform any other function or exercise any other power conferred on the Court under the Act (section 136), for example:o If a person makes an application to a Magistrates Court and the

respondent has some rights in relation to a shared rental property, the Magistrates Court may make orders about the tenancy at the same time

• Court must be constituted by a Magistrate. However, a Magistrates Court constituted by two or more justices may deal with certain applications (section 137) (only if a magistrate is not readily available)

Witnesses

• The aggrieved, a child, or a relative or associate of the aggrieved who is named in the application, are a protected witness (section 150)

• Court must consider whether to make an order for measures to minimise any fear or discomfort of the protected person

• Restricts the ability of a self-represented respondent to cross-examine a protected witness (section 151)

• The respondent not cross-examine a child protected witness in person

• The court is closed/not open to the public (section 158) • Publication of information that is likely to identify or lead to the

identification of a party, witness or child concerned in proceedings (section 159) is prohibited

Appeals

• Section 164 of the Act states that a person aggrieved by a decision made under the legislation (who may not necessarily be a party to the proceedings which resulted in the making of a domestic violence order) can appeal against the decision

• For example, an associate of an aggrieved may have a basis for appealing a decision if the court decides against naming them on the order, even though the associate may not have been involved in the original hearing. Ultimately, whether a person who is not a party to the proceedings is a ‘person aggrieved by the decision’ is itself a decision for the appeal court

Subpoenas

• A court hearing an application under the Act may issue a subpoena requiring the attendance of the person before the court and may require the person either to take an oath or to make an affirmation

• The legislation also provides that a court may issue a warrant where the court believes it appropriate that the respondent, or offender, be heard (section 156). If a person is taken into custody under a warrant issued under the Act, then the provisions of the Bail Act 1980 will apply to the person as if the person had been apprehended on a charge of an offence

Registering an interstate order

• Can be registered for the period during which the order, as originally made, is in force

• Has the same effect as a protection order and may be enforced against a person as if it were a protection order that had been personally served on the person as a respondent

• An application may be made to a court to vary a registered interstate order or cancel the registration of an interstate order

• The applicant need not give notice of the application for registration to the person against whom the order was made

Penalties for breach

• The general maximum penalty for contravening a domestic violence order or a police protection notice is 2 years imprisonment or 60 penalty units ($6,000)

• Where a respondent has been convicted of an offence of contravening a domestic violence order within the previous five years of an offence, the maximum penalty is three years imprisonment or 120 penalty units

• A person who fails to comply with release conditions from custody commits an offence with a maximum penalty of 60 penalty units or 12 months imprisonment (section 179)

• The penalties will help to achieve one of the main objectives of the Act, to increase the accountability of perpetrators of domestic and family violence

Service

• A police officer may serve a document authorised or required to be served under the Act on any day of the week, including Good Friday and Christmas day

• A police officer must personally serve an order, or varied order on a respondent

• The Court must give an order to other persons including an applicant who is not the aggrieved or a police officer, each named person and the police commissioner

• The Court must also give a copy an order to the aggrieved• The Court must give notice of an adjournment to a respondent who is

not present in court • If a document needs to be given to a child, the Act requires the

document must also be given to a parent of the child. The Act states a child cannot be given a document at school, unless there is no other place to effect service on the child

Forms

• The Act provides for the making of approved forms for a number of purposes including application forms, notices about voluntary intervention orders, and police protection notices

• Forms are created in such a way to ensure that all the information that is required to be collected and given under the law, is included in the form. A failure to provide all the information may mean that the Court does not have sufficient information to make a domestic violence order

• Forms can be accessed from:• http://www.courts.qld.gov.au/forms

Forms

Forms