On 17 September 2012 the Domestic and Family Violence Protection Act 2012 (“the new Act”) took effect to replace the existing Domestic and Family Violence Protection Act 1989. The new Act makes key changes to the laws in Queensland governing those who are affected by domestic and family violence and include, but are not limited to, the following:
1. Elements to be established
One of the most notable changes is in relation to the elements that an applicant must establish in order to obtain a Domestic Violence Order (“DVO”). For example, under the existing Act a court must be satisfied that the respondent has committed an act of domestic violence, and that the respondent is likely to commit an act of domestic violence again.
Under the new Act, however, there is no longer any requirement to prove that an act of domestic violence has actually occurred. According to the new Act, a Court must only be satisfied that the aggrieved is fearful of the respondent, regardless of whether or not the aggrieved can establish that such fear is reasonable.
These changes appear to make it easier for applicants to satisfy a court that a DVO is necessary.
2. Definition of domestic violence
The new Act also expands the definition of “domestic violence”. Of particular interest to persons involved in matrimonial property proceedings is the inclusion of “economic abuse” which can be defined by such actions as:
• Coercing a person to relinquish control over assets and income;
• Removing or keeping a person’s property without consent, or threatening to do so;
• Disposing of property owned by a person, or owned jointly with a person, against the person’s wishes and without lawful excuse;
• Without lawful excuse, preventing a person from having access to joint financial assets for the purposes of meeting normal household expense.
As it is not uncommon to see recently separated couples engage in the types of behaviour described above, it may be that the expanded definition of domestic violence will lead to a drastic increase in the number of applications made to the Magistrates Court for a DVO by persons who are also involved in matrimonial property proceedings.
3. Affect of family law orders
Another controversial change is the additional powers given to the Magistrates Court in relation to family law orders made by the Family Court or Federal Magistrates Court. The new Act provides that, where there is a family law order in place allowing contact between a respondent and a child, the
court may make orders to vary, suspend or discharge that order to ensure that it remains consistent with a DVO.
4. Rehabilitation for offenders
A new focus under the new Act will be to give those who commit acts of domestic violence an opportunity to change their behaviour by giving the court additional power to make orders requiring parties to attend intervention programs such as counselling or anger management programs.
5. People who can apply
The new Act also expands the list of people who can apply for a DVO. Previously, only the aggrieved or a Police Officer were permitted to make an application. Under the new Act however, a person authorised by the aggrieved may make an application on the aggrieved’s behalf. For example, a parent
of a person affected by family or domestic violence may make an application on behalf of their adult child.
6. Additional police powers
The new Act grants additional powers for police to issue a respondent with a police protection notice which may include a “cool down” provision preventing the respondent from entering a premises or approaching within a stated distance of a premises for a period of 24 hours.
7. Cross-applications
Laws relating to cross applications have also been amended. The changes mean that, where two parties make conflicting applications against each other, the court will aim to identify which party is in most need of protection. As such, it appears that under the new Act, only one party will receive a DVO whereas previously the court had authority to grant an order to both parties.
8. Obligation to explain
The new Act now places an obligation on the Court to ensure that all parties to a domestic violence application understand the nature, purpose and legal implications of any order made. While it is still unclear how this will work in practice, it has been suggested that DVO’s will now be required
to include written explanatory notes for each party.
9. Duration of order
The duration of domestic violence orders have also changed under the new Act and can now be in excess of two (2) years if the court is satisfied that there are special reasons for the DVO to continue for that length of time.
10.Consequences for breaching
The consequences of breaching a protection order are now more severe, with the maximum penalty for breaching a protection order raised to 120 penalty units or three years imprisonment.
The new Act now applies to existing DVO’s, and also to proceedings currently before the courts concerning both applications for DVO’s and criminal proceedings regarding a breach of a DVO.
Should you require further information about how Queensland’s new domestic violence laws might affect you, please feel free to contact our office.
