DOMESTIC VIOLENCE An overview of the legislation and recent changes Ben Strangman Barrister

AGENDA  Relevant legislation  Case law  Contraventions (amendments 22 October 2015)

RELEVANT LEGISLATION  Domestic and Family Violence Protection Act 2012  Domestic and Family Violence Protection Regulation 2012  Domestic and Family Violence Protection Rules 2014

REGULATION  Provides for the publication of information in circumstances where a death is involved  Provides for the registration of interstate orders (including NZ)

RULES  The Rules are to be applied by the court with the objective of avoiding undue delay, expense and technicality  A failure to comply with the Rules is an irregularity and does not render the proceeding a nullity  Provides for the technical aspects of filing and service of documents, the conduct of matters as well as evidence such as media exhibits, affidavits and subpoenas  The Rules also provide a scale of costs

THE ACT  The layout of the Act  Key terms – domestic violence, relevant relationship, and necessary or desirable  Types of orders  Relationship between domestic violence orders and family law orders  Important considerations  Offences

THE LAYOUT OF THE ACT  Relatively a short act (151 pages)  Part 1 – Introduction  Part 2 – Defining key terms  Part 3 – What domestic violence orders are  Part 4 – Police Powers  Part 5 – Court proceedings  Part 6 – Interstate orders  Part 7 – Offences  Part 8, 9, & 10 – General & Repeal provisions

KEY TERMS  Domestic violence,  Relevant relationship, and  Necessary or desirable

DOMESTIC VIOLENCE  What is “domestic violence”?  Ignore your personal views  For our purposes, domestic violence is defined by Part 2 Division 2 of the Act  It is a very broad definition  Encompasses many of the acts we normally associate with domestic violence, such as causing or threatening to cause personal injury  Includes a threat to cause self-harm and repeatedly contacting a person (SMS, etc)  Was there a threat intended to change another persons behavior?

RELEVANT RELATIONSHIP  What is a “relevant relationship”  Defined in Part 2 Division 3 of the Act  Again it is a very broad definition  Includes an intimate personal relationship, a family relationship, and an informal care relationship

NECESSARY OR DESIRABLE  Main area for appeals  Necessary or desirable replaced likely  Two importance decisions: 1. GKE v EUT [2014] QDC 248 – McGill SC, DCJ 2. MDE v MLG & Queensland Police Service [2015] QDC 151 – Morzone QC, DCJ

GKE V EUT [2014] QDC 248 – MCGILL SC, DCJ  [32] In my opinion the focus must be on the issue of 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 is necessary or desirable to make an order in order to protect the aggrieved from that. The Magistrate spoke about this in terms of an assessment of the risk to the aggrieved, and that I think was an appropriate basis for analysis. I agree with the Magistrate 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 whether in view of that the making of an order is necessary or desirable to protect the aggrieved.  [33] I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply 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. Broadly speaking I agree with what the Magistrate said in the passage beginning “fourthly” of his reasons, though I would express the last sentence as “the risk of future domestic violence against an aggrieved must be sufficiently significant to make it necessary or desirable to make an order in all the circumstances.” In assessing such a risk, it is relevant to consider the fact that there is going to have to be some ongoing relationship because of the position of the children, and, if as the appellant alleges the respondent has been difficult and uncooperative in the past in relation to the arrangements for him to have the opportunity to spend time with the children, there is a risk that there will be situations arising of a kind which have in the past produced domestic violence.

MDE V MLG & QUEENSLAND POLICE SERVICE [2015] QDC 151 – MORZONE QC, DCJ  Three stage test: 1. The court must assess the risk of future domestic violence between the parties in the absence of any order; 2. The court must assess the need to protect the aggrieved from that domestic violence in the absence of any order; and 3. The court must then consider whether imposing a protection order is “necessary or desirable” to protect the aggrieved from the domestic violence.

TYPES OF ORDER  Section 23 – A court can make a domestic violence order  A domestic violence order is a protection order or a temporary protection order  A temporary protection order is an order made prior to the court deciding whether or not to order a protection order

FAMILY LAW ORDERS  Section 68R of the Family Law Act 1975 allows for the variation of a family law order  The 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 – s78 DFVP Act

IMPORTANT CONSIDERATIONS  Weapons  Duration  Evidence  Confidentiality  Appeals  Registration of interstate orders

CONTRAVENTIONS  22 October 2015 amendments to section 177(2) of the Act  More than one contravention in 5 years – 240 penalty units($28,272.00) or 5 years imprisonment  First contravention 120 penalty units or 3 years imprisonment

CONTRAVENTIONS

SEXUAL ASSAULT

BEN STRANGMAN  Inns of Court Gold Coast  Level 1, 52 Davenport Street, Southport, Qld, 4215  