Domestic and Family Violence Protection
Act 2012
Preamble
• Domestic and family violence is a violation of human rights and not
acceptable in Queensland
• Civil law responses and criminal law responses should operate
together
• Perpetrators of domestic violence are solely responsible for their
use of violence and its impacts on other people
• Domestic violence is the leading cause of homelessness for
women and children
Principles
• Guide those involved in the administration of the legislation (e.g.
courts, police, lawyers)
• Intended to recognise that some people are more likely to be
victims of domestic violence (e.g. women, children, people with a
disability)
• Ensure any processes (such as court proceedings) take into
account a person’s vulnerability and assist their understanding of
process
Principles
(1) This Act is to be administered under the principle that the safety, protection and wellbeing of
people who fear or experience domestic violence, including children, are paramount
(2) Subject to subsection (1), this Act is also to be administered under the following principles –
(a) people who fear or experience domestic violence, including children, should be treated with
respect and disruption to their lives minimised;
(b) perpetrators of domestic violence should be held accountable for their use of violence and its
impact on other people and, if possible, provided with an opportunity to change;
(c) if people have characteristics that may make them particularly vulnerable to domestic violence,
any response to the domestic violence should take account of those characteristics;
Examples of people who may be particularly vulnerable to domestic violence:
o women
o children
o Aboriginal people and Torres Strait Islanders
o people from a culturally or linguistically diverse background
o people with a disability
o people who are lesbian, gay, bisexual, transgender or intersex
o elderly people.
(d) in circumstances in which there are conflicting allegations of domestic violence or indications that
both persons in a relationship are committing acts of violence, including for their self-protection,
the person who is most in need of protection should be identified;
(e) a civil response under this Act should operate in conjunction with, not instead of, the criminal law.
Meaning of domestic and family violence
• New legislation provides more contemporary definition of domestic
and family violence
• Defined as behaviour that: is physically or sexually abusive; is
emotionally or psychologically abusive; is economically abusive; is
threatening or coercive; or behaviour that in any other way controls
or dominates a second person and causes them to fear for their
safety or wellbeing or that of someone else
• The two people must be in a “relevant relationship” (i.e. intimate
personal relationship, family relationship, or informal care
relationship)
Meaning of associated domestic violence
• Behaviour by a perpetrator of violence towards child of aggrieved,
child who usually lives with aggrieved, relative of aggrieved or
associate of aggrieved
• Aims to ensure perpetrator cannot indirectly inflict further violence
by harming or threatening to harm a loved one of the aggrieved
and those who assist the aggrieved
Meaning of exposed to domestic violence
• Recognises that a child can be exposed to domestic violence if
they see or hear, or otherwise experience effects of domestic
violence (e.g. homelessness, witness the after effects of physical
injury or property damage)
• Does not matter whether the perpetrator intended to expose the
child to domestic violence or not
Meaning of emotional or psychological
abuse
• Behaviour that torments, intimidates, harasses or is offensive to
another person (e.g. derogatory taunts, repeated unwanted
contact, preventing a person from keeping or maintaining
relationships)
• Further examples provided in legislation but not limited to these
examples
Meaning of economic abuse
• Situation in which a perpetrator uses money and other assets to
control or dominate a victim
• Two broad categories of behaviour:
1. adversely affects a person by denying them economic or
financial autonomy
2. places a person in a position where they cannot meet
reasonable living expenses
• Examples distinguish reasonable behaviours from those which are
coercive, deceptive or unreasonably controlling
• Civil burden of proof will not require parties to produce complicated
financial statements or reports
Meaning of relevant relationship
• For domestic and family violence to have occurred under the Act,
the two people must be or have been in “relevant relationship”
• “Relevant relationship” defined by the Act as intimate personal
relationship, family relationship or informal care relationship
Meaning of intimate personal relationship
• Under the Act intimate personal relationship to include spousal
relationship, engagement relationship or couple relationship
• Further information about the kinds of relationships that are
considered intimate personal relationships provided in the Act
Meaning of spousal relationship
• De facto partner based on provisions of the Acts Interpretation Act
1954 or
• Former spouse of the person or
• Parent or former parent of a child of the person (regardless of
whether there is or was any relationship between the parents of
the child)
Section 32DA Acts Interpretation Act 1954
• De facto partner is a reference to either 1 of 2 persons who are
living together as a couple on a genuine domestic basis but are
not married to each other or related by family
• Further clarification provided in the Acts Interpretation Act 1954
Meaning of parent
• Child’s mother or father (including a person who under Aboriginal
or Torres Strait Islander tradition is considered a parent of the
child)
• Anyone else other than the chief executive (child protection)
having or exercising parental responsibility for that child
• Does not include a person standing in place of a parent of the child
on a temporary basis or an approved foster or kinship carer
Meaning of couple relationship
• New definition more accurately reflects contemporary relationships
• Sets out various matters for court to consider when deciding
whether two people are or were in a couple relationship (e.g.
degree of trust and level of dependence on, and commitment to,
each other; degree of intimacy; frequency of contact; length of
relationship)
• Couple relationship can exist even if it is not sexual or exclusive in
nature, or the two people are of the same or a different gender
• Does not exist just because two people date or dated each other
on a number of occasions
Meaning of family relationship and relative
• Family relationship exists between two people if one is or was the
relative of the other
• Examples of relatives (or former relatives) include spouse, child
(even if aged 18 or more), stepchild, parent, step-parent, sibling,
grandparent, aunt, nephew, cousin, half-brother, mother-in-law or
aunt-in-law
• The Act also provides for people who may have a wider concept of
a relative relationship such as Aboriginal or Torres Strait Islander
people
Meaning of informal care relationship
• A relationship between two persons where one is or was
dependent on the other (their carer) for help in an activity of daily
living (e.g. dressing or other personal grooming of a person,
preparing a person’s meals or helping a person with eating meals)
• A relationship between a child and a parent of a child is not an
informal care relationship
• Commercial arrangements are not informal care relationships
(even if a person does not pay a fee for the help provided under
the arrangement e.g. assistance by a voluntary organisation)
Meaning of aggrieved and respondent
• Aggrieved means the person for whose benefit a domestic
violence order or a police protection notice is in force or may be
made under the Act. Only one person can be named as the
aggrieved in an application
• Respondent means the person against whom a domestic violence
order or a police protection notice is in force or may be made
under the Act. More than one person may be named as the
respondent in an application for a domestic violence order or in a
domestic violence order but only one person may be named as the
respondent in a police protection notice
Children as aggrieved or respondent
• Child can only be named as aggrieved or respondent if an
‘intimate personal relationship’ or an ‘informal care relationship’
exists between the child and the other party named in the
application, order or notice
• Matters involving children as an aggrieved or respondent ordinarily
dealt with by the Children’s Court
• Child can be protected from domestic violence in the family home
by being named on order which is made for the benefit of another
person
Domestic Violence Orders
• An order made by the court that includes conditions that restrain,
restrict and prohibit the behaviour of the respondent to prevent
further domestic violence
• Can be either a protection order or a temporary protection order
• Protection order is made by a Magistrate when they make a final
decision
• Temporary protection order is made by a Magistrate for the
interim period before a final order is made.
Who can an order protect?
• Domestic violence order can protect:
– aggrieved
– child of the aggrieved
– child who usually lives with the aggrieved
– relative of the aggrieved
– an associate of the aggrieved
• A person other than aggrieved named in domestic violence orders
are known as “named person”
• The same conditions apply to named persons as to the aggrieved
Who can apply for an order?
• Protection orders can be requested by:
– aggrieved
– authorised person for the aggrieved (i.e. an adult authorised in
writing by the aggrieved to appear on their behalf, or an adult
whom the court believes is authorised by the aggrieved to
appear on their behalf even though the authority is not in
writing)
– a police officer under section 100(2)(a) of the Act
– a person acting under another Act for the aggrieved (i.e. an
eligible guardian under the Guardianship and Administration
Act 2000 or an eligible attorney under the Powers of Attorney
Act 1998)
– A party to a child protection proceeding, within that proceeding.
When can a court make a temporary
protection order
• Court can make a temporary protection order if:
– court adjourns a proceeding
– applicant for a protection order has asked clerk of the court
(under section 36) for the application to be heard by the court
before respondent is served
– applicant for the variation of a protection order has asked the
clerk of the court (under section 90) for the application to be
heard before respondent is served
– police officer applies for a temporary protection order (under
part 4, division 4 of the Act)
Varying a Domestic Violence Order
• If circumstances change after a domestic violence order is made, the
Act provides that a person can apply under section 86 for a variation
of the order
• The Act provides the following examples to demonstrate where a
variation may need to be considered:
– A protection order is made that includes only the standard
conditions. The respondent commits further, and more serious,
domestic violence against the aggrieved. An application to vary
the protection order and include additional conditions in the order
may be appropriate to give greater protection to the aggrieved
– A temporary protection order is made because of an application
under section 129 by a police officer. The aggrieved’s place or
residence is stated in the order as the premises that the
respondent is prohibited from approaching. If the aggrieved’s
place of residence changes, a variation of the temporary
protection order may be sought under section 86 of the Act
Application for a Domestic Violence Order
• Applications must:
– be in an approved form
– state grounds on which the order is made
– state nature of the order sought
– be verified by the applicant using a statutory declaration form
(when applicant is not a police officer)
– be filed in the Court
Service
• A police officer must personally serve copy of application on
respondent
• The copy must state that if respondent does not appear in court:
– a domestic violence order may be made in respondent’s
absence; or
– court may issue a warrant for respondent to be taken into
custody by a police officer if necessary for respondent to be
heard
• If a protection order application is made by a police officer, it can
be served on the respondent before it is filed in court
Cross applications
• Two protection order applications (original application and cross
application) have been made and are before court (either the
same or different courts), and:
– respondent in original application, named as aggrieved in cross
application
– aggrieved in original application, named as respondent in cross
application
• Either of the courts may order both applications to be dealt with by
the one court
• Either of the courts may hear the original application and the cross
application together
• The court hearing the cross application may take into account the
court records relating to the making of the protection order
When can a court make an order on its own
initiative?
•
•
•
•
When the court convicts the offender of an offence involving domestic violence
The court can only make or vary an order on its on initiative if reasonable
opportunity has been given to the:
– offender
– prosecuting authority for the offence
– person who is or would be named as aggrieved in order (if reasonably
practicable)
to present evidence and provide submissions on the making or varying of the
order
A court may make order or vary an order before the offender is discharged by
the court or otherwise leaves the court, or adjourn the matter to a later fixed day
and time (and may, in the meantime, make a temporary protection order)
Generally, applications for domestic violence orders are heard in a closed court.
However, if the court makes an order under this section of the Act, the matter is
heard in an open court. The court retains the power to order a closed court, but
a closed court is not automatic
Powers of the Children’s Court
• A Childrens Court hearing a child protection proceeding may make
a protection order against the child’s parent, if the:
– court is satisfied a protection order could be made against the
person and
– person who would be named as the aggrieved in the order is
also a parent of the child
• If a domestic violence order is in force against the child’s parent,
the court must consider the order and whether it needs to be
varied, e.g. to change date order ends, or ensure terms of order
are consistent with proposed order
• The court can only make or vary an order if reasonable opportunity
has been given to each party to present evidence and provide
submissions on the making or varying of the order
• This does not limit the power of the court to make any order under
the Child Protection Act 1999
Temporary protection orders
• A court may make a temporary protection order if the:
– court adjourns the hearing of an application for a protection
order or variation of a domestic violence order
– court convicts a person of an offence involving domestic
violence and adjourns the decision whether to make or vary an
order
– Children’s Court adjourns a hearing of an application for a
domestic violence order during a child protection proceeding
– applicant for a protection order or variation to a protection order
has asked for the application to be heard by the court before
the respondent is served
– application for a temporary protection order is made to the
court by a police officer under the Act
Consent orders
•
•
•
The Act provides that if parties to a proceeding for a domestic violence
order, or the variation of an order, consent or do not oppose to the
making of the order, then the court may make the order:
– if the court is satisfied that a relevant relationship exists between the
aggrieved and the respondent; and
– without being satisfied that the respondent has committed domestic
violence against the aggrieved; and
– whether or not the respondent admits to any or all of the particulars
of the application.
However, if the respondent is a child, then the court may make the order
only if the court is satisfied of the requirements for a protection order or
temporary protection order
Before making or varying a domestic violence order under this section,
the Court may conduct a hearing in relation to the application if the Court
considers it is in the interests of justice to do so
Naming persons in domestic violence
orders
• The Court may name in a domestic violence order:
– a relative or associate of the aggrieved if the court is
satisfied that this is necessary or desirable to protect the
relative or associate from associated domestic violence, for
example if the associate or a colleague have offered shelter to
the aggrieved and the aggrieved is staying with them
– a child of the aggrieved, or a child who usually lives with
the aggrieved, if the court is satisfied that this is necessary or
desirable to protect the child from associated domestic violence
or exposure to domestic violence
Court can request information about a child,
aggrieved or respondent from the chief
executive (child protection):
•
The court may ask the chief executive (child protection) to provide
information about the child, the aggrieved or the respondent that the chief
executive reasonably considers may help the court in deciding whether to
name the child in the order or to impose a condition relating to the child:
– where a court is considering an application for a protection order, or a
variation of a domestic violence order, that seeks to name a child in the
order, or the court is considering naming a child in a protection order;
and
– the respondent contests the naming of the child in the order or the
imposition or any conditions concerning the child; and
– the court considers that the chief executive (child protection) may have
information relating to the child, the aggrieved or the respondent that
may help the court in deciding whether to name the child in the order or
impose a condition relating to the child
Conditions of domestic violence orders
• Conditions include that the respondent:
– be of good behaviour towards the aggrieved and not commit
domestic violence against the aggrieved; and
– if the named person on the order is an adult:
o be of good behaviour towards and not commit associated
domestic violence against the named person
– if the named person on the order is a child:
o be of good behaviour towards and not commit associated
domestic violence against and not expose to domestic
violence
What contact is allowed?
• A respondent can ask a lawyer to contact the aggrieved or named
person, or another person, including a lawyer, to contact or locate
the aggrieved or named person for a purpose authorised under the
Act
• A condition imposed (under section 58) that prohibits a respondent
from asking someone else to contact or to locate an aggrieved or
named person does not prohibit a victim advocate from contacting
or locating the aggrieved or name person if:
– the purpose is to seek their consent to the provision of advocacy or
support; or the aggrieved or named person has consented to being
contacted or located by a victim advocate and
– the victim advocate is not knowingly in direct contact with the
respondent, and
– the respondent is participating in an approved intervention program by
an approved provider
Unborn children
• If an aggrieved is pregnant, the court may impose a condition that
takes effect when the child is born & requires the respondent to be
of good behaviour towards and not commit associated domestic
violence against the child or expose the child to domestic violence
• The court may impose the condition whether or not the respondent
is the father of the child
Voluntary intervention orders: counselling
or intervention program
• If a court makes or varies a domestic violence order, the court may
make a voluntary intervention order that requires the respondent to
attend an approved intervention program provided by an approved
provider and/or counselling provided by an approved provider
• The voluntary intervention order must require the respondent to
report to a stated approved provider at a stated place, and within a
stated time, to allow the approved provider to assess their
suitability to participate in the counselling or intervention program.
If they are found suitable, they must attend the counselling or
intervention program and comply with every reasonable direction
given by the approved provider
Voluntary intervention orders: steps in process –
order, suitability assessment, notices, contravention
• The court must explain to the respondent the purpose and effect of
the order
• The court may make or amend a voluntary intervention order only
if the respondent is present and agrees
• The approved provider assesses suitability to participate and
advises the court
• If the order is contravened, the approved provider must notify the
court and the police commissioner
Voluntary intervention orders
Example of a minor contravention
• The respondent misses one session of counselling or the
approved intervention program
• After being contacted by the provider, the respondent agrees to
attend a make-up session
• The respondent goes on to attend all other sessions
Family law orders
• A Magistrates Court in Queensland has limited power to revive,
vary or suspend a family law order when making a domestic
violence order
• The Magistrates Court can exercise some powers under the
Family Law Act 1975 to vary a parenting order for a child during
domestic violence proceedings under the Domestic and Family
Violence Protection Act 2012
Weapons
• The court is to provide as much information about weapons as
possible on order
• If a person has a job which requires them to use a weapon and
they are named as a respondent in an order, they cannot possess
a weapon after they have been named a respondent in a domestic
violence order
• Respondent must surrender all weapons licenses and weapons to
a police officer as soon as practicable or a respondent may
commit an offence against the Weapons Act
Ensuring the aggrieved and respondent
understand the domestic violence order
• If the respondent is before the court, the court must ensure the
respondent understands the purpose, terms and effect of the
proposed order
• If the aggrieved is before the court, the court must ensure the
aggrieved understands the purpose, terms and effect of the
proposed order (eg. order may be enforceable in other States and
New Zealand), and what may follow, if the respondent contravenes
the proposed order
Functions of police officers
•
•
If a police officer reasonably suspects that domestic violence has been
committed, the police officer must investigate the complaint, report or
circumstance on which the officer’s reasonable suspicion is based
The police officer may have a range of possible responses (section 100)
including:
– apply to the court for a protection order or a variation of an order
(part 3 of Act);
– issue a police protection notice (division 2, part 4 of Act);
– take the respondent into custody (division 3, part 4 of Act);
– apply to a magistrate for a temporary protection order (division 4,
part 4 of Act);
– take any other appropriate action (e.g. take a respondent to hospital
to receive treatment necessary for their welfare);
– take no further action - with appropriate written records to be made
and retained to document why this course of action is pursued
Police protection notices
• Issued when other responses not appropriate, for example:
– taking a perpetrator who is a continuing danger to personal
safety into custody while an application for a domestic violence
order is made; or
– applying directly to a magistrate after hours, usually by
telephone, for a temporary protection order to be made
Police protection notices –
when can they be made?
• A police officer can issue a police protection notice if they:
– are present at the same location as the respondent
– reasonably believe the respondent has committed domestic
violence
– reasonably believes that no domestic violence order has been
made, or police protection notice issued, that names the
respondent as a respondent or an aggrieved
– reasonably believes that a police protection notice is necessary
or desirable to protect the aggrieved from domestic violence
– reasonably believes the respondent should not be taken into
custody, and
– has obtained the approval of the supervising police officer to
issue the notice
Police protection notices –
conditions and information
Must include:
• relevant contact details for the respondent
• the grounds on which the police officer reasonably believes that
domestic violence has been committed,
• the date and time for the hearing of the application before the Court
Can include:
• a ‘cool down’ condition, lasting no more than 24 hours, which will prohibit
the respondent from entering, or approaching within a stated distance of
a nominated premises or aggrieved and contacting, attempting to
contact or asking somebody else to contact the aggrieved
The officer must also consider the accommodation needs of the respondent
and if they believe the respondent is a child, they must arrange temporary
accommodation
Taking a person into custody
• Detention period is limited to up to four hours from when the
person is first taken into custody
• A police officer is able to take a respondent to a ‘place of
treatment’ or ‘place of safety’ during the detention
• A police officer is able to apply to a magistrate to extend the four
hour detention period to a total of eight hours when it is necessary
to complete arrangements for the safety of the aggrieved, or the
respondent’s behaviour continues to present a danger of personal
injury or property damage or when the respondent is under the
effects of drugs or alcohol.
Taking a child into custody
• A child should only be taken into custody as a last resort and for
the least time justified in the circumstances
• The child must be held separately from any adults being held at
the same place
• A parent, or the chief executive (child safety) if the child is in the
custody or guardianship of the chief executive under the Child
Protection Act 1999, must be notified that the child has been taken
into custody
Other police powers
• Direct a person to remain at an appropriate place for one hour or a
longer reasonably necessary time in order for the police officer to
serve the respondent with a copy of an order, or to advise of the
existence and conditions of an order
• Police who come across a respondent when conducting other
duties, such as random breath testing, may use this opportunity to
ensure an order is enforceable if the officer believes the
respondent may not remain while the order is read out to them
• Police will not have to use these powers every time they attempt to
serve a respondent - only when the officer suspects the
respondent will not cooperate to be served
Court proceedings
• Jurisdiction to hear and decide any application made to the Court
under the Act and to perform any other function or exercise any
other power conferred on the Court under the Act (section 136), for
example:
o If a person makes an application to a Magistrates Court and the
respondent has some rights in relation to a shared rental property,
the Magistrates Court may make orders about the tenancy at the
same time
• Court must be constituted by a Magistrate. However, a Magistrates
Court constituted by two or more justices may deal with certain
applications (section 137) (only if a magistrate is not readily
available)
Witnesses
• The aggrieved, a child, or a relative or associate of the aggrieved
who is named in the application, are a protected witness (section
150)
• Court must consider whether to make an order for measures to
minimise any fear or discomfort of the protected person
• Restricts the ability of a self-represented respondent to crossexamine a protected witness (section 151)
• The respondent not cross-examine a child protected witness in
person
• The court is closed/not open to the public (section 158)
• Publication of information that is likely to identify or lead to the
identification of a party, witness or child concerned in proceedings
(section 159) is prohibited
Appeals
• Section 164 of the Act states that a person aggrieved by a
decision made under the legislation (who may not necessarily be a
party to the proceedings which resulted in the making of a
domestic violence order) can appeal against the decision
• For example, an associate of an aggrieved may have a basis for
appealing a decision if the court decides against naming them on
the order, even though the associate may not have been involved
in the original hearing. Ultimately, whether a person who is not a
party to the proceedings is a ‘person aggrieved by the decision’ is
itself a decision for the appeal court
Subpoenas
• A court hearing an application under the Act may issue a
subpoena requiring the attendance of the person before the court
and may require the person either to take an oath or to make an
affirmation
• The legislation also provides that a court may issue a warrant
where the court believes it appropriate that the respondent, or
offender, be heard (section 156). If a person is taken into custody
under a warrant issued under the Act, then the provisions of the
Bail Act 1980 will apply to the person as if the person had been
apprehended on a charge of an offence
Registering an interstate order
• Can be registered for the period during which the order, as
originally made, is in force
• Has the same effect as a protection order and may be enforced
against a person as if it were a protection order that had been
personally served on the person as a respondent
• An application may be made to a court to vary a registered
interstate order or cancel the registration of an interstate order
• The applicant need not give notice of the application for
registration to the person against whom the order was made
Penalties for breach
• The general maximum penalty for contravening a domestic
violence order or a police protection notice is 2 years
imprisonment or 60 penalty units ($6,000)
• Where a respondent has been convicted of an offence of
contravening a domestic violence order within the previous five
years of an offence, the maximum penalty is three years
imprisonment or 120 penalty units
• A person who fails to comply with release conditions from custody
commits an offence with a maximum penalty of 60 penalty units or
12 months imprisonment (section 179)
• The penalties will help to achieve one of the main objectives of the
Act, to increase the accountability of perpetrators of domestic and
family violence
Service
• A police officer may serve a document authorised or required to be
served under the Act on any day of the week, including Good Friday
and Christmas day
• A police officer must personally serve an order, or varied order on a
respondent
• The Court must give an order to other persons including an applicant
who is not the aggrieved or a police officer, each named person and
the police commissioner
• The Court must also give a copy an order to the aggrieved
• The Court must give notice of an adjournment to a respondent who is
not present in court
• If a document needs to be given to a child, the Act requires the
document must also be given to a parent of the child. The Act states
a child cannot be given a document at school, unless there is no other
place to effect service on the child
Forms
• The Act provides for the making of approved forms for a number of
purposes including application forms, notices about voluntary
intervention orders, and police protection notices
• Forms are created in such a way to ensure that all the information
that is required to be collected and given under the law, is included
in the form. A failure to provide all the information may mean that
the Court does not have sufficient information to make a domestic
violence order
• Forms can be accessed from:
• http://www.courts.qld.gov.au/forms
Forms
Forms