Amendments to the Domestic and Family Violence and Protection Act

In October 2022, the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Bill 2022 (‘the Bill’) was introduced.

The Bill contained a number of proposed amendments to the Domestic and Family Violence and Protection Act 2012 (‘DFVPA’).

On 22 February 2023 the Bill passed with amendment into law.

Amendments to the DFVPA

1. Definitions of Domestic Violence

The amendments proposed under the Bill are intended to define what coercive and controlling behaviours are, as defined in the offence of “domestic violence”.

The amendments are intended to make it clearer that domestic violence includes behaviour that occurs over a period of time, and individual acts that when considered cumulatively are abusive, threatening, cause fear or are coercive.  The behaviour must be considered in the context of the relationship as a whole and include a reference to a “pattern of behaviour” in the definition of domestic violence, “emotional or psychological abuse” and “economic abuse”.

The concept of identifying the “person most in need of protection” in the relevant relationships is also included in the amendments.

What does this mean?

This may lead to an increase in orders made and an increase in conditions, increase the complexity of considerations for the court in domestic violence applications, which therefore increases the demand for grants of aid.

The Queensland Police Union has raised concerns that broadening the definition of domestic violence would increase the complexity in investigating incidents which puts additional pressures on lawyers, police and courts.

The Aboriginal and Torres Strait Islander Legal Service (‘ATSILS’) has raised concerns that the amendments may compound the existing disadvantages and discrimination of Aboriginal and Torres Strait Islander peoples and increase a reluctance to report domestic and family violence.  ATSILS raised the need for training for Magistrates, Lawyers, support services and Police Officers on what constitutes a “pattern of behaviour”, to ensure that the nuanced and complex family dynamics of Aboriginal and Torres Strait Islander families are not misunderstood.

Non-physical abuse is extremely harmful and there is a need to recognise the deep harms of coercive control.  However, there are concerns that the criminalisation of coercive control may not be an effective improvement to the long-term safety of women and children.

2. Cross Applications

It was identified that the DFVPA is not operating as intended, with cross applications being brought by perpetrators as a means of continued control against victims.

The amendment seeks to make clear that the individual who is in the most need for protection in the relationship must be identified.

Who is a person in most need of protection?

The amendment seeks to define that a person is in most need of protection, when:-

• • the behaviour towards them is more likely than not to be abusive, threatening or coercive or controlling or domination, which would cause the person fear for their safety or that of their child or other person or pet in the household; and
  • that person’s behaviour is more likely than not to be for the self-protection of themselves or their child or other person or pet in the household or attributable to the cumulative effect of the other person’s domestic violence towards them.

What will be considered?

The court must consider:-

• • the nature and severity of the harm caused to each party;
  • the history of domestic violence and the relationship between the parties;
  • which party has the capacity to seriously harm or control or dominate or cause fear to the other party;
  • the level of fear experienced by each party; and
  • whether the persons have characteristics that make them particularly vulnerable to domestic violence.

What does this mean?

A cross application will now only be awarded in rare circumstances.  This means, that unless there are exceptional circumstances and clear evidence that each person in the relationship is in need of protection from the other, only one domestic violence order ought be in force at any one time.

If a cross application is sought, the application must be heard at the same time as the original application.  A thorough examination of the relationship will be undertaken and any history of domestic violence, coercive control, and any other circumstance relevant to the relationship will be assessed.  Only then allowing a cross application to be brought if it can be established that domestic violence has been established by each party.

Final take away

The Bill is designed to do more than amend the law with respect to coercive control and effects a significant aspect of the criminal justice system.

When charged with a Domestic Violence offence you should seek legal advice from a criminal lawyer to ensure that you are exercising your rights while not exposing yourself to prosecution for a criminal offense.   Please contact our experienced criminal law solicitors.