Domestic Violence Law - Developments Janice T Mayes Barrister-at-Law NQLA conference 2018

Qld Police Service Annual Statistical Review 2015/2016 Applications for protection orders made in Queensland: 2014 / 15 there were 25,143 applications made 2015 / 16, there were 29,938 applications made An increase of 19% in applications in one year 73% of these applications were police initiated 75% of respondents were male

Three elements for protection order Section 37 of Domestic and Family Violence Protection Act 2012 (“the DFVP Act”):  A relevant relationship exists between the aggrieved and the respondent; and The respondent has committed domestic violence against the aggrieved; and The protection order is necessary or desirable to protect the aggrieved from domestic violence.

2016 Amendments to the DFVP Act Section 97: Default position is protection orders end in five years; Orders can end in less than 5 years only if court is satisfied there are reasons for doing so; In deciding the period of orders, the principle of paramount importance to the court must be the safety, protection and wellbeing of people who fear or experience domestic violence, including children; Court must give reasons if ordering a period less than 5 years

2016 Amendments to the DFVP Act Similar requirements at section 92 to vary the duration of an order: Court must consider that the safety, protection and wellbeing of the aggrieved or named person would not be adversely affected by the variation; and If the variation is to reduce the duration of the order – there are reasons for doing so

New Mandatory requirements Section 57 of DFVP Act – a Court making or varying a Domestic Violence Order must consider whether imposing any other condition is necessary or desirable to protect the aggrieved from domestic violence; or a named person from associated domestic violence; or a named person who is a child from being exposed to domestic violence. The mandatory requirement to consider an ouster condition remains; The principle of paramount importance to the court is the safety protection and wellbeing of people who fear or experience domestic violence including children.

Inconsistency between Protection Order and Family Law Order General rule is that the family law order will prevail; However Section 68R of the Family Law Act 1975 (Cwth) empowers a Court making a family violence order to revive, vary, discharge or suspend an existing family law order, injunction or arrangement

New Mandatory requirements Section 78 of DFVP Act, now says before deciding to make or vary a Domestic Violence Order the court must: have regard to any Family Law Order which the court has been informed; and if any inconsistency between the proposed protection order and the family law order, consider whether to exercise its power under s.68R of the Family Law Act 1975 (Cwth) to revive, vary, discharge or suspend the family law order; court must not diminish the standard of protection given by a domestic violence order for the purpose of facilitating consistency with a family law order.

Section 68R of the Family Law Act 1975 (Cwth Section 68R imposes limits on domestic violence orders amending a family law order: Court must make or vary a domestic violence order; the court must have before it material that was not before the court that made the order or injunction; Court can’t discharge a family law order in interim domestic violence proceedings; the court is to have regard to whether spending time with both parents is in the best interests of the child; the court must be satisfied that it is appropriate to vary, discharge or suspend the family law order or injunction because the person has been exposed or is likely to be exposed to family violence as a result of the operation of that order or injunction.

Necessary or Desirable Requirement Section 37 of the DFVP Act - matters that the court must consider in determining whether a Protection Order is necessary or desirable: the principles in section 4 of the Act if an intervention order has been previously made - compliance or failure to comply with the order. (However, compliance with a previous protection order is not sufficient for the Court to refuse to make an order) if the application names more than one respondent the Order can be made against one or more respondents.

Magistrate Costanzo in WJM v NRH [2013] QMC12 referring to his earlier decision in Armour v FAC [2012] QMC 22 : Meaning of necessary or desirable: an Order may be considered desirable but not necessary, or alternatively may be necessary but not desirable Online Oxford English dictionary defined necessary as “that is needed” “needed to be done, achieved or present; essential”, “indispensable vital essential; requisite.” Also with to or for (a person or thing) “of an action: that needs to be done; that is done in order to achieve the desired result or effect: if necessary, if required by the circumstances” and “that which is indispensable; a necessary thing: an essential or requisite.” Desirable means in “worthy to be desired; to be wished for” and “that which is desirable; a desirable property or thing.”

Magistrate Costanzo in WJM v NRH [2013] QMC12 referring to his earlier decision in Armour v FAC [2012] QMC 22 (Cont’d) the court must find that it is either necessary or desirable that the order be made to protect the aggrieved with the terms of an Order; The need for protection must be a real one, not some mere speculation or fanciful conjecture; Need often arises from risk. The court needs to assess the risk to aggrieved and consider whether management of the risk is called for; The risk of further domestic violence and the need for protection must actually exist. There is no requirement that the need or the risk be significant or substantial but it must be sufficient to make it necessary or desirable for an order to be made in all of the circumstances.

District Court Judge McGill SC - GKE v EUT [2014] QDC 248 The focus must be on protecting the aggrieved from future domestic violence, the extent to which on the evidence there is a prospect of such a thing in the future, and of what nature, and whether it can properly be said in the light of that evidence that it is necessary and desirable to make an order in order to protect the aggrieved from that. It is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider in view of that the making of an order is necessary or desirable to protect the aggrieved. There must be a proper evidentiary basis for concluding that there is such a risk. Does not depend upon the mere possibility of such a thing occurring in the future, or the mere fact that the Applicant for the Order is concerned that such a thing may happen in the future. Risk of future domestic violence must be sufficiently significant to make it necessary or desirable to make an order in all the circumstances.

Judge Morzone QC - MDE v MLG and Queensland Police Service [2015] QDC 151 Focus of this element is the paramount need for the protection of an aggrieved from domestic violence, and whether imposing a protection order is necessary or desirable to meet that need; The phrase “necessary or desirable” evokes a very wide and general power. It should be construed in a similarly liberal manner to enable a court to properly respond and, if appropriate, tailor an Order to protect a person from domestic violence;

Judge Morzone QC - MDE v MLG and Queensland Police Service [2015] QDC 151 (Cont’d) Whether a protection order is necessary or desirable to protect the aggrieved from domestic violence requires a three stage process supported by a proper evidentiary basis as follows: Firstly the court must assess the risk of future domestic violence between the parties in the absence of any order. Relevant considerations: evidence of past domestic violence and conduct, genuine remorse, Rehabilitation, medical treatment, physiological counselling, compliance with any voluntary temporary orders and changes of circumstances.

Judge Morzone QC - MDE v MLG and Queensland Police Service [2015] QDC 151 (Cont’d) Secondly, the court must assess the need to protect the aggrieved from that domestic violence in the absence of any order. Relevant considerations: evidence of the parties’ future personal and familial relationships, their places of residence and work, the size of the community in which they reside, and the opportunity for direct and indirect contact in future communication, for example, in relation to children.

Judge Morzone QC - MDE v MLG and Queensland Police Service [2015] QDC 151 (Cont’d) Thirdly, the court must then consider whether imposing a Protection Order is necessary or desirable to protect the aggrieved from domestic violence - Court must consider the principles in section 4(1).

Judge Deardon - CPS v CNJ [2014] QDC 47 It was agreed on appeal that domestic violence had occurred. However, Judge Dearden determined that the evidence did not support it being necessary or desirable for a protection order to be made. Magistrate indicated it was only the fact that the respondent had sought out and struck up a relationship with the aggrieved’s former partner that made it necessary and desirable for the protection order to be made; Judge Deardon said he found it curious that the respondent would have done this, and the respondent’s explanation for this less than convincing. However it was entirely speculative and not supported by the evidence that this action made it necessary and desirable to protect the aggrieved from domestic violence in the future.

Judge Kingham - FCA v Commissioner of the Queensland Police Service [2014] QDC 46 On appeal Judge Kingham found the following facts counted against a finding that it was necessary or desirable to make a Protection Order: The respondent and aggrieved were no longer in a relationship The hearing was six months after the alleged act of domestic violence There was no evidence of any contact between them except as it related to these proceedings There was no allegation of any further act of domestic violence against the aggrieved The aggrieved had made repeated attempts to terminate the proceedings The aggrieved gave evidence that she was not in fear of the respondent and did not require protection, which was consistent with her attempts to withdraw the complaint

Judge Rackemann - BJH v CJH [2016] QDC 27 On appeal, Judge Rackemann found that there had been domestic violence, but: it was limited in scope - on one night the Respondent seized the aggrieved’s phone and threw it on the floor; and The aggrieved’s evidence was that she was not in fear of the appellant. Judge Rackemann said the Magistrate had made a material error in the scope and extent of the violence; On that basis Judge Rackemann set aside the Order on the basis it was not necessary or desirable.

Costs - Section 157 of the DFVP Act Each party must bear their own costs; However costs may be awarded against a party where the court hears and decides to dismiss an application on the grounds that the application is malicious, deliberately false, frivolous or vexatious.

Withdrawal of DFVP application Rule 50 of DFVP Rules: (1) The applicant for a domestic violence order or the variation of a domestic violence order may withdraw the applicant’s DFVP application before a DFVP court decides the application in 1 of the following ways— (a) orally during a proceeding in a DFVP court; (b) in writing to the clerk of the DFVP court (an  "application to withdraw" ).

Justice Henry - KAV v Magistrate Bentley & Anor [2016] QSC 46 Aggrieved attempted to withdraw her application for a protection order at a review mention 12 days prior to the trial. Her withdrawal was opposed on the basis that it would prevent the respondent from obtaining a costs order. The Magistrate determined as follows: She characterised the aggrieved’s withdrawal as an “application to withdraw”, and dismissed it; Magistrate then heard the matter on the papers, against the objections of the aggrieved’s counsel. She dismissed the application for a protection order on the basis that it was frivolous; Magistrate made a costs order against the aggrieved.  

Justice Henry - KAV v Magistrate Bentley & Anor [2016] QSC 46 (Cont’d) The aggrieved sought a statutory order of review of the decisions to prevent the withdrawal of the application and the costs order Justice Henry in the Supreme Court found that: Rule 50 conferred an apparently unqualified right upon an applicant to withdraw the application orally during an DFVP hearing before the court decides the application. If he was wrong about that, the Magistrate erred in not permitting the withdrawal of the application; The only “injustice” suggested in not allowing the withdrawal was that the respondent would be deprived of a then non- existent right to seek costs; In truth the “injustice” was the refusal of the withdrawal which would then have required the respondent to bear his own costs.

Useful Resource Paper has been assisted by the Magistrates Court Bench Book for the Domestic and Family Violence Protection Act 2012. Encourage lawyers to download and use it for domestic violence proceedings