In August 2023 significant changes were made to domestic and family violence legislation in Queensland by way of the first round of system wide legislative reforms.
These reforms will the culmination of investigations into the current system including from the Women Safety and Justice Taskforce “Hear Her Voice” and the “Not Now, Not Ever Report” by the Special Taskforce investigating strategies to address domestic and family violence issues.
Recommendations from the latter report have now been incorporated into the existing domestic violence legislation with the passing of the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023, coming into effect on 1 August 2023.
In a press release dated 14 October 2022 the Attorney-General and Minister for Justice, Minister for Women and Minister for the Prevention of Domestic and Family Violence stated the purpose of the reforms as including:
- Laying the foundation for an offence of “coercive control”.
- Shift the approach to domestic and family violence to focus on patterns of abusive behaviour occurring over a period of time.
- Modernise and strengthen the definition of “stalking” in the Queensland Criminal Code.
- Widen the definition of “domestic and family violence” to include patterns of behaviour.
- Strengthen the court’s response to cross applications for protection orders to identify and protect a person most at risk.
- Ensure the court’s consideration of previous domestic violence history.
While there have been substantial changes to the criminal law and domestic violence legislation since 2012 including National Domestic Violence Scheme, harsher penalties for breaches, ‘Ouster’ conditions to remove perpetrators from the family home, orders more tailored to specific circumstances, hearing of cross application together etc, the August 2023 are likely to be significant in their effect.
Key changes in the 2023 domestic and family violence legislation
The key changes relate to the following, and will be discussed in more detail below:
- Amendments to the Criminal Code and definitions.
- For cross applications – changes with respect to the way in which applications are heard and to identify which applicant may be in greater need of protection.
- Use of criminal and domestic violence history and a requirement for this information to be made available.
- Wider power to award costs.
- Reopening of proceedings where orders were made in the absence of the respondent and rules of substituted service of the respondent.
- Explanations with respect to what constitutes evidence of domestic violence.
- Directions to a jury in criminal proceedings involving domestic violence.
- Transitional provisions.
Criminal Code definitions amended
Several amendments to definitions within the Criminal Code have been made relating to sexual misconduct and with respect to “unlawful stalking”.
Unlawful stalking is widened to include “intimidation, harassment or abuse”. Further in section 359B(c) Criminal Code the following has been inserted to broaden what is unlawful stalking:
“…monitoring, tracking or surveilling a person’s movements, activities or interpersonal associations without the person’s consent, including, for example, using technology”
The section further provides examples of the above, such as:
- Using a tracking device or drone to track a person.
- Checking the recorded history in a person’s phone.
- Reading SMS messages.
- Monitoring email accounts or internet browser history.
- Monitoring social media platforms.
- Publishing offensive material on a website, social media platform or online social network in a way that will be found by, or brought to the attention of, a person.
There are also significant amendments to the definitions in the Domestic and Family Violence Protection Act 2012. Most notable is the change to the definition of the meaning of domestic violence and other forms of behaviour in section 8 (this includes emotional or psychological abuse and economic abuse).
In these sections the word “behaviour” is extended to “behaviour or pattern of behaviour”.
A behaviour/pattern of behaviour:
- May occur over a period of time.
- May be more than one act (or series of acts) when considered cumulatively is abusive, threatening, coercive or causes fear.
- To be considered in the context of the relationship between the parties.
Cross Applications in the 2023 Domestic Violence changes
Where there is a cross application i.e., where both parties bring a Protection Order application against each other, the Court must decide which of the applicants is the person who is most in need of protection and dismiss the other party’s application. The exception to this is where there is clear evidence both people require protection (i.e., exceptional circumstances).
To determine who is most in need of protection the court will examine:
- The context of the relationship as a whole.
- Which of the parties is “more likely than not” to be abusive, threatening or coercive, controlling or dominating causing fear for the safety or wellbeing of the party, child or an animal (including a pet).
- Whether the conduct of the person most in need of protection is “more likely than not” due to self-protection (including a child or animal), in retaliation or attributable to the cumulative effect of domestic violence.
In determining the above the Court must consider:
- The relationship and domestic violence history.
- The history of domestic violence including the nature and severity of the harm, the level of fear, which party has the capacity to seriously harm the other person or control, dominate or cause fear to the other person.
- Whether a person who has characteristics that make them vulnerable.
The examples of the types of people who have “characterises making them vulnerable” are:
- Women and children.
- Aboriginal peoples and Torres Strait Islanders.
- People from a culturally or linguistically diverse background.
- People with disability.
- Lesbian, gay, bisexual, transgender or intersex.
- The elderly.
Criminal and domestic violence history
Police are required to provide the criminal and domestic violence history of the respondent to the Court where there is a Police application/Protection Notice or if a clerk of the court gives an application for a Protection Order to the officer in charge of a Police station.
The criminal history means: “…a document that states each conviction of, or charge made against, the person for an offence in Queensland or elsewhere…”
Domestic violence history means a document that states a domestic violence order (including interstate or Order under the repealed legislation), Police Protection Notice or NZ order has been made.
The court must consider the criminal and domestic violence history when:
- Deciding if a protection order is necessary or desirable to protect the aggrieved.
- Deciding whether to vary a domestic violence order or to make a temporary protection order if the Court considers it is relevant to do so.
The criminal and domestic violence history must be considered by the Court when determining whether a Protection Order is “necessary and desirable”. Further, the criminal and domestic violence history may be considered in determining whether to make a Temporary Protection Order or in an application to vary an Order.
When a Respondent consents to a Protection Order (including without admission), the Court may conduct a hearing (if the Court considers it is in the interests of justice) to consider the criminal and domestic violence history.
Costs in domestic violence applications in the 2023 Domestic Violence changes
In the 2012 Act costs could only be awarded if an application was dismissed and it was determined the party making the Application acted in a “malicious, deliberately false, frivolous or vexatious” manner.
The amendments open up the discretion to award costs to circumstances where the Court determines the person making the Application intentionally engaged in domestic violence through “systems abuse”. This is where the legal process is used to bully, intimidate, or harass a person.
The author’s view is that this costs provision may make “tit for tat” cross application a more dangerous prospect for a party with insufficient evidence to establish the matters required for a Protection Order or if the application is dismissed as set out above under the new rules relating to cross applications.
Reopening proceedings and substituted service
Rules regarding service have been relaxed to allow a Respondent to be served via “substituted service”.
Before making the Order, the Court must be satisfied reasonable attempts have been made to serve the application and that substituted service is necessary and desirable to protect the aggrieved.
When a Respondent is served via substituted service, and the application is determined in the Respondent’s absence, there are rules inserted to allow for a reopening of the proceeding within 28 days of becoming aware of the Protection Order.
Where the proceeding is reopened:
- It does not affect the operation of the Protection Order or variation.
- The Court may stay the Order until the reopened proceeding is determined.
- The Court may determine the reopened proceeding “in any way it considers appropriate”.
- The Court may hear the whole or part of the proceeding.
What constitutes evidence of domestic violence
Division 1A sets out what includes evidence of domestic violence. The following matters are referred to:
- The history of domestic violence between the Respondent and Aggrieved or family members.
- The cumulative psychological effect of domestic violence.
- Social, cultural, or economic factors of the Aggrieved or family member of the Aggrieved.
- Responses by relatives or the community to the domestic violence to prevent domestic violence or in retaliation for it.
- The way in which social, cultural, or economic factors have effected help-seeking behaviour of the Aggrieved.
- The way the domestic violence or lack of safety options was exacerbated by “inequities” such as race, poverty, gender identity, sex characteristic, disability, or age.
- The dynamics of the relationship.
- The psychological effects of the domestic violence.
- Social and economic factors.
Expert evidence can be adduced with respect to:
- The nature and effects of domestic violence generally.
- The effect of domestic violence on a particular person.
An expert is someone who can demonstrate “specialised knowledge gained by training, study or experience of a matter that may constitute evidence of domestic violence.”
Directions to a jury in criminal proceedings involving domestic violence
The following applies to criminal proceedings where domestic violence is an issue (such as for breaching a Protection Order).
A direction to the jury may be requested by the prosecution or defence at any time unless there are good reasons to do so.
On the judge’s own initiative, the judge may direct the jury with respect to self-defence and behaviour or patterns of behaviour that constitute domestic violence. Behaviour includes (but is not limited to) the following:
- Dependent or subordinate relationships.
- Isolating a person from family, friends, and support.
- Controlling day to day activities.
- Restricting freedom of movement or action.
- Restricting ability to resist violence.
- Frightening, humiliating, degrading, or punishing a person.
- Compelling a person to engage in unlawful or harmful behaviour.
The judge may also inform the jury with respect to the matters above which constitute evidence of domestic violence.
The changes apply to all applications currently before the Court regardless of whether the proceeding commenced prior to 1 August 2023.
If you need assistance wtih matters relating to Domestic Violence, contact us here or call us on (07) 3207 7663.