On 1 August 2023, the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 came into effect resulting in the following major changes to the Domestic and Family Violence Protection Act 2012 (“the...
On 1 August 2023, the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 came into effect resulting in the following major changes to the Domestic and Family Violence Protection Act 2012 (“the Act”):
Cross-applications
If there are cross applications in the same court, the court must hear the applications together (s 41C(2)(a)).
If there are cross applications, the court must decide who is the person most in need of protection and must dismiss the other person’s application (such that there is only one domestic violence order in force) unless, in exceptional circumstances, there is clear evidence that each of the persons in the relationship is in need of protection from the other (s 4(2)(e)). The following sections of the Act assist the court make this determination:
S 22A – Who is the person most in need of protection in a relevant relationship
(1) A person (the first person), who is in a relevant relationship with another person (the second person), is the person most in need of protection in the relationship if, when the behaviour of each of the persons is considered in the context of their relationship as a whole—
the behaviour of the second person towards the first person is, more likely than not— abusive, threatening or coercive; or controlling or dominating of the first person and causing the first person to fear for the safety or wellbeing of the first person, a child of the first person, another person or an animal (including a pet); or the first person’s behaviour towards the second person is, more likely than not— for the first person’s self-protection or the protection of a child of the first person, another person or an animal (including a pet); or in retaliation to the second person’s behaviour towards the first person, a child of the first person, another person or an animal (including a pet); or
(2) In deciding which person in a relevant relationship is the person most in need of protection, a court must consider—
(a) the history of the relevant relationship, and of domestic violence, between the persons; and
(b) the nature and severity of the harm caused to each person by the behaviour of the other person; and
(c) the level of fear experienced by each person because of the behaviour of the other person; and
(d) which person has the capacity—
to seriously harm the other person; or to control or dominate the other person and cause the other person to fear for the safety or wellbeing of the first person, a child of the first person, another person or an animal (including a pet); and(e) whether the persons have characteristics that may make them particularly vulnerable to domestic violence.
Examples of people who may be particularly vulnerable to domestic violence—
women children Aboriginal peoples and Torres Strait Islander peoples people from a culturally or linguistically diverse background people with disability people who are lesbian, gay, bisexual, transgender or intersex elderly people
S 41G – Deciding cross applications
This section applies to a court hearing the following applications together under section 41C, 41D or 41E—(a) the original application and cross application;
(b) the variation application and cross application.
(2) The court must decide—
(a) which of the parties to the relevant relationship is the person most in need of protection in the relationship; and
(b) the application that makes, or varies, the protection order that is necessary or desirable to protect the person most in need of protection from domestic violence; and
(c) if the other application is an application for a protection order—to dismiss the other application; and
(d) if the other application is an application for the variation of a protection order—to vary the order by reducing its duration so that the order ends.
(3) Despite subsection (2), the court may make, or vary, a protection order under both applications if the court is satisfied that, in exceptional circumstances—
(a) there is clear evidence that each of the parties to the relevant relationship is in need of protection from the other party; and
(b) it is not possible to decide whether 1 party’s need for protection is greater than the other party’s need for protection.
(4) The relevant relationship mentioned in subsection (2) and (3) is the relevant relationship that exists between the persons who are the aggrieved and the respondent to—
(a) the original application and the cross application mentioned in section 41A(1); or
(b) the first protection order and second protection order mentioned in section 41A(2); or
(c) the original protection order and the cross application mentioned in section 41A(3).
Provision of respondent’s criminal and domestic violence history to the court
The police must file/give the respondent’s criminal and domestic violence history to the court. Criminal history and domestic violence history is defined in the schedule dictionary of the Act as:
criminal history, of a person, means a document that states each conviction of, or charge made against, the person for an offence in Queensland or elsewhere, regardless of when the conviction or charge, or acts or omissions constituting the offence or alleged offence, happened.
domestic violence history, of a person, means a document that states each of the following orders made, or notices issued, against the person, regardless of when the order was made or notice issued—
a domestic violence order; a police protection notice; a domestic violence order under the repealed Domestic and Family Violence Protection Act 1989; an interstate order; an order that corresponds to an interstate order made under a repealed law of another State; a New Zealand order.The court must consider the respondent’s criminal and domestic violence history when deciding if a protection order is necessary or desirable to protect the aggrieved from domestic violence (s 37(2)(a)(iii)). The court is may consider the respondent’s criminal and domestic violence history when deciding whether to vary a domestic violence order or to make a temporary protection order if, in the court’s opinion, it is relevant to do so (s 91(3) and s 45(3)).
In existing applications that were made but not decided before 1 August 2023, the court may ask for the respondent’s criminal and domestic violence history and consider same if, in the court’s opinion, it is relevant to deciding the application (s 234).
The specific provisions in relation to when the police must file/give the respondent’s criminal and domestic violence history to the court and the disclosure of same to the aggrieved, are as follows:
S 36A – Court must be given respondent’s criminal history and domestic violence history
(similar provision at s 90A regarding applications to vary)
This section applies if—
(a) a police officer makes an application for a protection order; or
(b) the clerk of the court gives an application for a protection order to the officer in charge of a police station under section 33(2)(b); or
a copy of a police protection notice issued by a police officer is filed in the court to be heard as an application for a protection order.
(2) The police commissioner must ensure a copy of the respondent’s criminal history and domestic violence history—
is filed in the court—
(i) with an application or police protection notice mentioned in subsection (1)(a) or (c); or
(ii) before the date and time stated in the application for the first hearing of the application; or
(b) is given to the court when the application is first heard.
If the respondent does not have a criminal history or domestic violence history, the police commissioner must ensure the court is informed of that fact.
S 160A – Court may make order about disclosure of, or aggrieved’s access to, respondent’s criminal history or domestic violence history
(1) This section applies if a copy of a respondent’s criminal history or domestic violence history has been filed in or given to a court hearing an application under this Act.
(2) The court may order that a person must not disclose information contained in the respondent’s criminal history or domestic violence history to another person.
(3) An order under subsection (2) does not apply to the respondent.
(4) If the court is satisfied that all or part of the respondent’s criminal history or domestic violence history is not relevant to deciding the application, the court may decide the application without taking into account, or hearing submissions about, all or the part of the criminal history or domestic violence history.
Examples—
the respondent’s criminal history consists of 1 conviction for a minor stealing offence committed more than 20 years ago part of the respondent’s criminal history consists of offences that do not involve violence committed when the respondent was a child(5) If the court decides the application under subsection (4), the court may order that—
(a) the aggrieved or the applicant (if the applicant is not the aggrieved, the respondent or a police officer)—
(i) not be given a copy of all or part of the criminal history or domestic violence history; and
(ii) not be told about the contents of all or part of the criminal history or domestic violence history; and
(b) if a copy of the criminal history or domestic violence history has been given to a person mentioned in paragraph (a)—the copy be returned to the court.
(6) The court may make an order under this section with or without conditions.
(7) The court makes an order under this section on its own initiative.
Domestic violence orders by consent
Before deciding whether to make or vary a domestic violence order by consent, the court may conduct a hearing in relation to the particulars of the application if, in the court’s opinion, it is in the interests of justice to do so, and the court may consider the respondent’s criminal and domestic violence history if, in the court’s opinion, it is relevant to do so (s 51(5)).
Costs
Section 157(2) with respect to costs has been amended to provide that the court may award costs against the party who made the application if the court hears the application and decides (the new subsection is underlined):
to dismiss the application and, in doing so, also decides that the party, in making the application, intentionally engaged in behaviour, or continued a pattern of behaviour, towards the respondent to the application that is domestic violence; or
Note—
This type of behaviour is known as systems abuse or legal abuse. It is behaviour in which a person intentionally misuses the legal system, including, for example, by starting court proceedings based on false allegations against another person, as a way to intentionally exert control or dominance over the other person or to torment, intimidate or harass the other person.
to dismiss the application on the grounds that it is malicious, deliberately false, frivolous or vexatious.
Substituted service
Section 184A has been inserted to provide that an order can be made by the court to provide that a respondent be served with a document by substituted service rather than personal service (‘a substituted service order’). The court must be satisfied that reasonable attempts have been made to personally serve the document on the respondent, that serving the document by way of substituted service is necessary and desirable to protect the aggrieved and is reasonably likely to bring the document to the attention of the respondent. The court may make a substituted service order on its own initiative, on the application of a party to the proceeding or on the application of a police officer.
Reopening proceedings
If a respondent is served with an application under a substituted service order (as provided for by s 184A above) and the application is heard and decided in the respondent’s absence, the respondent may make an application to reopen the proceeding within 28 days after becoming aware that the protection order subject of the application had been made or varied. The court has discretion to reopen the proceedings only if the court is satisfied that, pursuant to s 157A(1):
the application was served on the respondent under a substituted service order; and
The effect of reopening a proceeding under s 157A is provided for as follows:
S 157B – Effect of decision to reopen proceeding
(1) A decision of the court to reopen a proceeding does not affect the operation of the decision in the proceeding, or a domestic violence order made or varied in the proceeding, or prevent the taking of action to implement the decision or order.
(2) However, the court may make an order staying the operation of the decision, domestic violence order or varied order until the reopened proceeding is decided.
(3) The court may act under subsection (2) on the application of a party or on its own initiative.
S 157C – Rehearing reopened proceeding
(1) The court may decide a reopened proceeding in any way it considers appropriate, including, for example, by hearing the proceeding afresh, in whole or part.
(2) For an appeal against a decision the subject of the reopened proceeding, the time for starting the appeal starts on the day the court makes the decision under the reopened proceeding.
(3) This division does not otherwise affect a right of appeal.
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