Overview
On 1 August 2023 the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 (Qld) came into force.
Most notably the Act amends Queensland’s domestic violence laws to give effect to the recommendations contained in the first report of the Women’s Safety and Justice Taskforce, Hear Her Voice – Report One – Addressing coercive control and domestic and family violence in Queensland.
The amendments are significant, and their retrospective application has the potential to impact matters currently before the Courts.
How ROG can help
The team at Robertson O’Gorman is experienced in this area of law. We are acutely aware of the ways in which the most recent amendments to Queensland’s domestic violence legislation may impact on proceedings started both before and after 1 August 2023.
If you would like specialised advice relating to a domestic violence matter, please contact our office on (07) 3034 0000.
Overview of Amendments to Queensland Domestic Violence Laws
The amendments to Queensland’s domestic violence laws may be categorised as follows:
- Definition of domestic violence
- Cross Applications
- Identification of “person most in need of protection”
- Costs
- Criminal and Domestic Violence Histories: Consideration and Disclosure
- Substituted Service
- Reopening of Proceedings
- Protected Witnesses
Details for each of these categories is below.
- Definition of Domestic Violence
The Act expands the definition of domestic violence.
First, it amends the definitions of domestic violence,[1] emotional or psychological abuse[2] and economic abuse[3] to include reference to a ‘pattern of behaviour’.
Second, the Act makes clear that domestic violence includes behaviour that may occur over a period of time and includes individual acts that, when considered cumulatively, are abusive, threatening, coercive or cause fear. The Act also states that these factors must be considered in the context of the relationship as a whole.
Intimidating harassing or abusing a person has also been included in the definition of ‘domestic violence’.[4]
As per the Explanatory Notes, these amendments are intended to “strengthen the responses to coercive control through a shift from focusing on responding to single incidents of violence to focusing on the pattern of abusive behaviour that occurs over time”.[5]
- Cross Applications
The Act amends Queensland’s domestic violence laws as they relate to the making and hearing of Cross Applications.
Summarised these amendments are:
- requiring applications and cross applications to be heard together;[6]
- requiring the court to consider whether to make arrangements for the safety, protection or wellbeing of the person most in need of protection (for example, allowing the person most in need of protection to give evidence outside the courtroom);[7]
- requiring the court to identify the person most in need of protection in the context of the relationship as a whole;[8] and
- only allowing the court to make one order to protect the person most in need of protection, unless there are exceptional circumstances where there is clear evidence that each of the parties in the relationship are in need of protection from each other.[9]
The Explanatory Notes state that these amendments are intended to ensure that cross applications are not used by perpetrators of domestic violence as a means of “continuing to control and intimidate victims, resulting in domestic violence orders being made against victims of DFV”.[10]
- Identification of “person most in need of protection”
The Act has, for the first time, provided legislative guidance on determining the ‘person most in need of protection’.
Under the new section 22A of the DFVPA, a person will be ‘most in need of protection’ when the behaviour towards them is more likely than not:
- abusive, threatening or coercive; or
- controlling or dominating causing them to fear for their safety or wellbeing (or that of their child, another person or animal, including a pet); or
- the person’s behaviour is more likely than not to be for the self-protection of themselves (or their child, another person or animal, including a pet), in retaliation of the other’s person behaviour towards them (or their child, another person or animal, including a pet), or attributable to the cumulative effect of the other person’s domestic violence towards them.
Under the new section 22A(2) the court must consider the following when determining the person most in need of protection:
- the history of domestic violence and the relationship between the parties;
- the nature and severity of the harm caused to each other;
- the level of fear experienced by each person;
- which person has the capacity to seriously harm the other person, or control or dominate the other person and cause fear; and
- whether the persons have characteristics that make them particularly vulnerable to domestic violence. Examples of people who may be particularly vulnerable to domestic violence are provided.[11]
- Costs
The Act enables a Court to award costs against a party whose application is dismissed and is considered by the Court to be a behaviour, or continuation of a pattern of behaviour, that is domestic violence.[12]
The intent behind this amendment is to prevent the type of behaviour described as ‘systems abuse’ or ‘legal abuse’: the use of Queensland’s domestic violence laws by one person to commit domestic violence against another.[13]
- Criminal and domestic violence histories
The Act amends Queensland’s domestic violence laws to require a respondent’s criminal and domestic violence histories to be disclosed to the Court in proceedings commenced after 1 August 2023. The Act gives the Court the power to consider those histories at various stages of proceedings. The new disclosure requirements apply to interstate histories and spent convictions.[14]
For proceedings commenced before 1 August 2023 but not yet decided, the Court may ask for the respondent’s criminal and domestic violence histories and consider same if it considers them relevant.[15]
Summarised:
- The Police Commissioner must provide a copy of the respondent’s criminal and domestic violence history to the Court when applying for a Protection Order, and when applying to vary a Protection Order.[16]
- The Court must consider a respondent’s criminal and domestic violence histories when deciding whether a Protection Order is necessary;[17]
- The Court may consider a respondent’s criminal and domestic violence histories when making or varying a Protection Order,[18] and when choosing to make a Temporary Protection Order;[19]
- The Court may consider a respondent’s criminal and domestic violence histories of a parent when deciding to make or vary a protection order.[20]
- Substituted Service
The Act amends Queensland’s domestic violence laws to allow for substituted service[21] of Police Protection Notices[22] and Protection Orders.[23] A substituted service order may be made for documents made before 1 August 2023.[24]
- Reopening of proceedings decided in respondent’s absence
The Act allows for a respondent to apply to the Court to reopen proceedings that were decided in the respondent’s absence, if the application was served under a substituted service order and the application was not, or could not reasonably have been, brought to the respondent’s attention by doing so.[25]
- Protected witnesses
The Act makes victims of domestic violence, or domestic violence order related offences, protected witnesses.[26]
This means that victims of domestic violence are afforded those protections as set out in the relevant part of the Evidence Act 1977 (Qld),[27] namely that they cannot be cross examined by an unrepresented defendant for an offence against the Domestic and Family Violence Protection Act 2012 (Qld).[28]
[1] Section 8.
[2] Section 11.
[3] Section 12.
[4] Section 8(3).
[5] Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Bill 2022, Explanatory Notes, p 5.
[6] Section 41C.
[7] Section 41D.
[8] Section 41G.
[9] Section 41G(3).
[10] Ibid n 5, p 6.
[11] Section 22A(2)(e).
[12] Section 157(2).
[13] See section 157(2)(a).
[14] Sections 189A, 189B.
[15] Section 234(2).
[16] Sections 36A, 90A, 189B.
[17] Section 36A.
[18] Sections 42(3); 91.
[19] Section 45.
[20] Section 43(6).
[21] See section 184A.
[22] Section 113(1)(a).
[23] Section 184(5)(a)(ii).
[24] Section 236.
[25] Sections 157A – 157C.
[26] Section 150(1).
[27] Evidence Act 1977 (Qld) Part 2, Division 6.
[28] Section 151.