Today I delivered a paper in Brisbane for Legalwise about recent changes to the Family Law Act, and about the Domestic and Family Violence Protections Act 2012 (Qld).
Here is the paper:
Domestic Violence Changes
By Stephen Page
Harrington Family Lawyers
Legalwise: Family Law In Practice
16 March, 2012
Summary of the two changes: 7 June and 17 September
There have been two significant changes to the law, one to take effect in June and the other in September: amendments to the Family Law Act which take effect on 7 June, 2012, and repeal of the Domestic and Family Violence Protection Act 1989 and replacement with the 2012 Act, which takes effect on 17 September, 2012.
Both changes have been driven by various reviews of how Australia’s laws deal with domestic violence, a process which accelerated following the death of Darcey Freeman.
Family Law Act Amendments
The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 received royal assent on 7 December 2011. Certain portions of that Act commenced on 7 December 2011, most importantly as to who is able to witness affidavits in the Family Court, with the insertion of a new section 98AB of the Family Law Act [and I note the previous rules on swearing affidavits in the Federal Magistrates Court still apply in that court – under section 186 of the Evidence Act 1995], other portions commenced on 4 January 2012 [amendments to the Bankruptcy Act 1966 and related amendments to the Family Law Act], but the family violence provisions do not commence until 7 June 2012.
There are some significant changes with which we must all be familiar.
The explanatory memorandum says, relevantly:
“The Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (the ‘Family Violence Bill’) will amend the Family Law Act 1975 (Cth) to provide better protection for children and families at risk of violence and abuse. The Bill also makes several technical amendments which correct drafting and minor policy oversights and provide other efficiencies for the courts and litigants.
The Family Violence Bill responds to reports received by the Government into the 2006 family law reforms and how the family law system deals with family violence. The reports indicate that the Act fails to adequately protect children and other family members from family violence and child abuse. These reports are the Evaluation of the 2006 family law reforms by the Australian Institute of Family Studies (AIFS); Family Courts Violence Review by the Honourable Professor Richard Chisholm AM; and Improving responses to family violence in the family law system: An advice on the intersection of family violence and family law issues by the Family Law Council.
Other research reports on family violence, shared care and infant development further provide a strong evidence base for reform. These reports are: Family Violence and Family Law in Australia: the Experiences and Views of Children and Adults from Families who Separated Post-1995 and Post-2006 collaboratively produced by Monash University, the University of South Australia and James Cook University; Shared Care Parenting Arrangements since the 2006 Family Law Reforms by the Social Policy Research Centre of the University of New South Wales; and Post-separation parenting arrangements and developmental outcomes for infants and children by Jennifer McIntosh, Bruce Smyth, Margaret Kelaher, Yvonne Wills and Caroline Long.
The safety of children is of critical importance and the Government takes the issue of addressing and responding to family violence and child abuse very seriously. The family law system must prioritise the safety of children to ensure the best interests of children are met. The Family Violence Bill sends a clear message that family violence and child abuse are unacceptable.
These amendments address issues of significant community concern by strengthening the role of family courts, advisers and parents in preventing harm to children while continuing to support the concepts of shared parental responsibility and shared care, where this is safe for children.
The key amendments made by the Family Violence Bill will:
· prioritise the safety of children in parenting matters;
· change the definitions of ‘abuse’ and ‘family violence’ to better capture harmful behaviour;
· strengthen advisers obligations by requiring family consultants, family counsellors, family dispute resolution practitioners and legal practitioners to prioritise the safety of children;
· ensure the courts have better access to evidence of abuse and family violence by improving reporting requirements; and
· make it easier for state and territory child protection authorities to participate in family law proceedings where appropriate.”
Definition of abuse
The definition of “abuse” will change. It will be:
“ ‘Abuse’, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, or exposed to, family violence; or
(d) serious neglect of the child.”
• There was a change to the assault definition in (a) so that no longer does the assault need to occur “which is an offence under a law, written or unwritten, enforced in a State or Territory in which the act constituting the assault occurs” and can therefore occur outside Australia.
• There is no change to paragraph (b).
• Paragraph (c) is new and there is are new definitions of “exposed to” and “family violence”.
• Paragraph (d) is new.
• The much wider definition of “abuse” to include the child suffering serious psychological harm or serious neglect has significant implications in practice including mandatory notifications which I will refer to below.
The explanatory memorandum states:
“As with the existing definition of ‘abuse’, proposed paragraph (a) provides that an assault, including a sexual assault, amounts to abuse. However, the new definition will remove the requirement for the assault to be an offence under an enforceable law in a State or Territory. This means that those working with the Act, including courts, legal practitioners and family members will not be required to have regard to the terms of State and Territory laws when considering whether abuse has occurred. The new definition will remove uncertainty about knowing the elements of an offence and whether an offence has been committed…
The meaning of neglect is not defined and therefore takes its ordinary meaning. Neglect encompasses a range of acts of omission including failure to provide adequate food, shelter, clothing, supervision, hygiene or medical attention.”
Definition of “member of family”
This is repealed in section 4(1) and altered in section 4(1AB), and a similar alteration at the beginning of section 4(1AB).
The explanatory memorandum states:
“Item 4 repeals the existing definition of ‘member of the family’ in subsection 4(1) and inserts a new definition which refers the reader to revised subsection 4(1AB). This amendment moves the description of the purposes for which the definition applies to the substantive definition.”
Definition of “family violence”
The current definition of “family violence” in section 4(1) is to be repealed. It provides:
“ ‘Family violence’ means conduct, whether actual or threatened, by a person towards, or towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or is reasonably apprehensive about, his or her personal wellbeing and safety in particular circumstances if a reasonable person in those circumstances or fearful, or be apprehensive about, his or her personal wellbeing or safety.”
There is to be a new definition in section 4AB.
The definition is significantly wider and removes the need for reasonableness that was criticised about the definition in section 4(1). The section set out below sets out examples of family violence but significantly there are these:
• Repeated derogatory taunts;
• Unreasonably denying the family member their financial autonomy that he or she would otherwise have had;
• Unreasonably withholding financial support needed to meet the reasonable living expenses of a family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support;
• Preventing the family member from making or keeping connections with his or her family, friends or culture.
It is reasonable to assume in light of this much wider definition that there will be significantly more notices in Form 4 –Family Violence or Risk of Family Violence than have been filed to date.
The definition in section 4AB provides:
“(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.”
The explanatory memorandum states:
“The examples recognise the wider range of behaviour experienced by victims of family violence. The inclusion of examples will not exclude any behaviour that is within the general characterisation set out in subsection 4AB(1). For example, threats of suicide and self-harm are not mentioned in the definition or examples of ‘family violence’, but will be captured by the definition where the threat is intended to coerce, control or cause a family member to be fearful.”
Significantly “exposed” to family violence is defined in the new section 4AB(3):
“If the child sees or hears family violence or otherwise experiences the effects of family violence.”
As long ago as 1994 it was clear that the Family Court recognised that there could be an impact on children from family violence even when they did not see or hear it. The definition makes plain that direct exposure is not required. As you will have seen above, there is a wide list of examples of when the child might be exposed to family violence as set out in section 4AB(4).
The explanatory memorandum states:
“This reflects current social science and approaches to child protection, which indicate that exposure to violence threatens a child’s physical, emotional, psychological, social, education and behavioural wellbeing…
The examples clarify that there does not have to be intent for a child to hear, witness or otherwise be exposed to family violence.”
Goodbye to Families, Marriage and Separation
Section 12G, which requires us to give this brochure to clients or the other party, will be repealed as of 7 June. This will inevitably mean that some forms will change.
Alteration of the objects of part 7
Probably the most significant amendment to the Act is also the shortest. For the first time, the courts will be required, as will we as practitioners, to take an explicit human rights perspective when dealing with parenting matters. An additional object has been added pursuant to section 60B:
“To give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.”
The convention may be found on Austlii.
It might appear that the Convention has been incorporated into municipal law. Contrast this to the approach by Mason CJ and Deane J in Teoh’s case (1995):
“But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law.
It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law. The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia’s international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations.
28. Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the courts of the common law. The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law. But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law. A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials. Much will depend upon the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which it is intended to serve and its relationship to the existing principles of our domestic law.” (emphasis added)
Although Teoh’s case has been applied, Parliament is now saying explicitly that the Convention should be given effect. However, the explanatory memorandum states that the Convention has not been incorporated as municipal law:
“The purpose of this object is to confirm, in cases of ambiguity, the obligation on decision makers to interpret Part VII of the Act, to the extent its language permits, consistently with Australia’s obligations under the Convention. The Convention may be considered as an interpretive aid to Part VII of the Act. To the extent that the Act departs from the Convention, the Act would prevail. This provision is not equivalent to incorporating the Convention into domestic law.
24. Australia ratified the Convention in 1990 and, in doing so, committed to protecting and ensuring children’s rights. The Convention contains the full range of human rights – civil, cultural, economic, political and social rights. These rights can be broadly grouped as protection rights, participation rights and survival and development rights. One of the main principles on which the Convention is based is the obligation to have regard to the best interests of the child as a primary consideration in decision-making. Part VII of the Act is based on this same principle; although the best interests of the child are elevated to ‘paramount’ status in several provisions. The reference to the Convention in section 60B does not adversely affect these provisions in Part VII or dilute the meaning of ‘paramount consideration’. Nothing in the Convention prevents Australia enacting stronger protections for the rights of the child than the Convention itself prescribes.”(emphasis added)
Significant portions of the Convention are these:
• Portion of the recital.
In the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance.
• Convinced that the family, as a fundamental group of society in the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.
• Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.
• Considering that the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity.
• Bearing in mind that, as indicated in the Declaration of Rights of the Child, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”.
• Recognizing that, in all countries in the world, there are children living in exceptionally difficult conditions, and that such children need special consideration.
• Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child.
• Article 1. For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is obtained earlier.
• Article 2 States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
• Article 2 paragraph 2 States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.
[I note that the child must be protected against all forms of discrimination because of, for example, the religious beliefs of one of the child’s parents. It may well be that the court has to take into account, to ensure that there is compliance with the convention, the religious beliefs of bothof the parents, including if one parent does not have religious beliefs.]
• Article 3 point 1 In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
• Article 3 point 2 States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
• Article 3 point 3 States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, and the number and suitability of their staff, as well as competence at provision.
• Article 5 States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
• Article 6 point 2 States Parties shall ensure to the maximum extent possible the survival and development of the child.
• Article 7 point 1 The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
• Article 8 point 1 States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
• Article 8 point 2 Where a child is illegally deprived of some or all of the elements of his or her identity, the parties shall provide appropriate assistance for protection, with a view to speedily re-establish his or her identity.
• Article 9 point 1 States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
• Article 9 point 2 In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given are[sic.] opportunity to participate in the proceedings and make their views known.
• Article 9 point 3 Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.
• Article 10 point 1 In accordance with the obligation of states parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a state party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.
• Article 10 point 2 A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contact with both parents. Towards that end and in accordance with the obligation of States Parties under Article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognised in the present Convention.
• Article 11 point 1 States Parties shall take measures to combat the illicit transfer and non return of children abroad.
• Article 12 point 1 States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
• Article 12 point 2 For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
• Article 14 point 1 States Parties shall respect the right of the child to freedom of thought, conscience and religion.
• Article 14 point 2 States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.
• Article 14 point 3 Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.
• Article 16 No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
• Article 16 point 2 The child has the right to the protection of the law against such interference or attacks.
• Article 18 point 1 States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
• Article 18 point 2 For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of the child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.
• Article 19 point 1 States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
• Article 19 point 2 Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
• Article 20 point 1 A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
• Article 20 point 2 States Parties shall in accordance with their national laws ensure alternative care for such a child.
• Article 20 point 3 Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or of necessary placement in suitable institutions for the care of the child. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.
• Article 23 point 1 States Parties recognise that a mentally or physically disabled child shall enjoy a full and decent life, in conditions which ensure dignity, promotes self-reliance and facilitate the child’s active participation in the community.
• Article 24 [in part] States Parties shall ensure full implementation of [the right of the child to enjoyment of the highest attainable standard of health and of facilities for the treatment of illness and rehabilitation of health] and, in particular, shall take appropriate measures: ….(e) to ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breast feeding, hygiene and environmental sanitation and the prevention of accidents.
• Article 24 point 3 States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.
• Article 27 point 1 States Parties recognise the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.
• Article 30 In those states in which ethnic, religious or linguistic minorities of persons of indigenous origin exist, a child belonging to such minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.
• Article 31 point 1 States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.
• Article 31 point 2 States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for the cultural, artistic, recreational and leisure activity.
• Article 33 States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances.
• Article 34 [in part] States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse.
• Article 35 States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of trafficking children for any purpose or in any form.
• Article 36 States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare.
• Article 37 States Parties shall ensure that:
(a) no child shall be subject to torture or other cruel, inhuman or degrading treatment or punishment …
• Article 39 States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self respect and dignity of the child.
• Article 41 Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in:
(a) the law of the State Party; or
(b) international law enforced for that State.
• Article 54 The original or the present Convention, in which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary General of the United Nations.
Section 60CC changes
The most significant change is that to the primary considerations, with the insertion of a new subsection (2A):
“(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
A reminder: this is what subsection (2) provides:
“(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
The friendly parent provisions in the current (3)(c), (4) and (4A)are removed. This is the current (3)(c):
“(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent”.
This is the new (3)(c) and (ca):
“(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.”
Changes to the friendly parent provisions come after the criticisms of Professor Chisholm:
“On the material available, it seems likely that the friendly parent provision, s 60CC(3)(c),while it might have had a beneficial effect in many situations, has had the undesirable consequence in some cases of discouraging some parents affected by violence from disclosing that violence to the family court. It is appropriate, therefore, to consider whether some amendment would remove this undesirable consequence while retaining the value of the provision in encouraging parents in ordinary circumstances to facilitate the child’s relationship with the other parent.
If the legislation seeks to spell out what is good parenting, it should do so in a way that is appropriate for all the cases that come to the family courts. If the legislation is to state the general desirability of facilitating children’s relationship with the other parent, it should be done in such a way that it also recognises that there are circumstances in which parents need to take action to protect their children, and in some cases this means making serious allegations against the other parent. It is important in these cases that the understandable desire to emphasise the importance of parents supporting each other should not inadvertently lead to provisions that deter or discourage the parent from taking such protective action where this is necessary to protect the children.”
S.60CC(3)(k) as to family violence orders is repealed, to be replaced with:
“(k) if a family violence order applies, or has applied, to the child or a member of the child’s family–any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(iv) any other relevant matter.”
Professor Chisholm said about the current s.60CC(3)(k):
“(W)hat is important is the evidence or information relevant to the risk, rather than whether or not a different court has made a family violence order, or what evidence was before the court when it did make the family violence order.
The old paragraph (k), in my view, does not deal appropriately with this matter. By including family violence orders in this list of matters relevant to the assessment of children’s interests, it might be taken as suggesting that the order itself is a factor that should be taken into account. It then partly retreats from that suggestion by excluding interim and non-contested orders. The rationale is, obviously, that it may be wrong to infer from the making of such orders that there is a risk of violence. But is the implication that the court should infer that there is a risk of violence from the making of final and contested orders?
I doubt if that was the intention, and in my view the legislation should not give the impression that the court will infer from the order itself that a child is at risk. Such an impression, whether or not it reflects what the court will actually do, might well encourage people to seek family violence orders in order to gain some advantage in family court cases.
In my view the law should do everything possible to enable the court to know about current family violence orders, so it can avoid making orders that inadvertently clash with them. Otherwise, what is important is that the court should learn about the factual circumstances that might suggest a risk to the child or other person, regardless of what was the basis of a previous family violence order. As one legal submission pointed out, ‘It is the underlying allegations that are far more important to the Court in determining the case than the existence or otherwise of an order’.”
There is a new s.60CH requiring disclosure of actions taken by child protection services, such as the Department of Communities:
“60CH Informing court of care arrangements under child welfare laws
(1) If a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is under the care (however described) of a person under a child welfare law, that party must inform the court of the matter.
(2) If a person who is not a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is under the care (however described) of a person under a child welfare law, that person may inform the court of the matter.
(3) Failure to inform the court of the matter does not affect the validity of any order made by the court. However, this subsection does not limit the operation of section 69ZK (child welfare laws not affected).
60CI Informing court of notifications to, and investigations by, prescribed State or Territory agencies
(a) a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is or has been the subject of:
(i) a notification or report (however described) to a prescribed State or Territory agency; or
(ii) an investigation, inquiry or assessment (however described) by a prescribed State or Territory agency; and
(b) the notification, report, investigation, inquiry or assessment relates to abuse, or an allegation, suspicion or risk of abuse;
that party must inform the court of the matter.
(a) a person who is not a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is or has been the subject of:
(i) a notification or report (however described) to a prescribed State or Territory agency; or
(ii) an investigation, inquiry or assessment (however described) by a prescribed State or Territory agency; and
(b) the notification, report, investigation, inquiry or assessment relates to abuse, or an allegation, suspicion or risk of abuse;
that person may inform the court of the matter.
(3) Failure to inform the court of the matter does not affect the validity of any order made by the court.
(4) In this section:
“prescribed State or Territory agency” means an agency that is a prescribed State or Territory agency for the purpose of section 69ZW.”
There is a new duty imposed on us in advising clients in addition to that under s.63DA:
“60D Adviser’s obligations in relation to best interests of the child
(1) If an adviser gives advice or assistance to a person about matters concerning a child and this Part, the adviser must:
(a) inform the person that the person should regard the best interests of the child as the paramount consideration; and
(b) encourage the person to act on the basis that the child’s best interests are best met:
(i) by the child having a meaningful relationship with both of the child’s parents; and
(ii) by the child being protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(iii) in applying the considerations set out in subparagraphs (i) and (ii)–by giving greater weight to the consideration set out in subparagraph (ii).
(2) In this section:
“adviser” means a person who is:
(a) a legal practitioner; or
(b) a family counsellor; or
(c) a family dispute resolution practitioner; or
(d) a family consultant.”
This addition answers the criticism of Professor Chisholm, who stated:
“In my view the present wording of s 63DA is inconsistent with one of the two major themes of the legislation. It effectively invites the professional to ignore issues of family violence and safety, and focus only on the benefits of parental involvement. By doing so it seems likely to have exposed people to increased risks of violence, by contributing to the impression that the family law system is more interested in encouraging parents to be involved than in respecting the safety of children and adults.”
Section 65DAA has been amended, by the deletion of this note in (5), which deals with reasonable practicality:
“Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).”
Obligations to notify the Department
Currently a party alleging abuse or risk of abuse must file and serve a form 4, pursuant to s.67Z. This obligation has been extended to independent children’s lawyers, because the term “party” has been substituted with “interested person” which is defined as:
“(a) a party to the proceedings; or
(b) an independent children’s lawyer who represents the interests of a child in the proceedings; or
(c) any other person prescribed by the regulations for the purposes of this paragraph.”
Furthermore, the mandatory reporting regime imposed on court officials and independent children’s lawyers in cases of abuse under s.67ZA(2) must be complied with, unless it is known that a prior notification has taken place. Subsections (2) to (4) will now read:
“(2) If the person has reasonable grounds for suspecting that a child has been abused, or is at risk of being abused, the person must, as soon as practicable, notify a prescribed child welfare authority of his or her suspicion and the basis for the suspicion.
(3) If the person has reasonable grounds for suspecting that a child:
(a) has been ill treated, or is at risk of being ill treated; or
(b) has been exposed or subjected, or is at risk of being exposed or subjected, to behaviour which psychologically harms the child;
the person may notify a prescribed child welfare authority of his or her suspicion and the basis for the suspicion.
Note: The obligation under subsection (2) to notify a prescribed child welfare authority of a suspicion that a child has been abused or is at risk of being abused must be complied with, regardless of whether this subsection also applies to the same situation.
(4) The person need not notify a prescribed child welfare authority of his or her suspicion that a child has been abused, or is at risk of being abused, if the person knows that the authority has previously been notified about the abuse or risk under subsection (2) or subsection 67Z(3), but the person may notify the authority of his or her suspicion.”
If a party or an independent children’s lawyer allegesthat there has been family violence or risk of family violence, then the form 4 must be filed by that person:
“67ZBA Where interested person makes allegation of family violence
(1) This section applies if an interested person in proceedings for an order under this Part in relation to a child alleges, as a consideration that is relevant to whether the court should make or refuse to make the order, that:
(a) there has been family violence by one of the parties to the proceedings; or
(b) there is a risk of family violence by one of the parties to the proceedings.
(2) The interested person must file a notice in the prescribed form in the court hearing the proceedings, and serve a true copy of the notice upon the party referred to in paragraph (1)(a) or (b).
(3) If the alleged family violence (or risk of family violence) is abuse of a child (or a risk of abuse of a child):
(a) the interested person making the allegation must either file and serve a notice under subsection (2) of this section or under subsection 67Z(2) (but does not have to file and serve a notice under both those subsections); and
(b) if the notice is filed under subsection (2) of this section, the Registry Manager must deal with the notice as if it had been filed under subsection 67Z(2).
Note: If an allegation of abuse of a child (or a risk of abuse of a child) relates to a person who is not a party to the proceedings, the notice must be filed in the court and served on the person in accordance with subsection 67Z(2).
(4) In this section:
“interested person” in proceedings for an order under this Part in relation to a child, means:
(a) a party to the proceedings; or
(b) an independent children’s lawyer who represents the interests of the child in the proceedings; or
(c) any other person prescribed by the regulations for the purposes of this paragraph.
“prescribed form” means the form prescribed by the applicable Rules of Court.
“Registry Manager” has the same meaning as in section 67Z.”
Section 117AB is repealed.
Domestic and Family Violence Protection Act 2012
This Act, which updates and modifies the legal landscape about domestic violence, takes effect on 17 September, 2012.
The explanatory notes state:
“The Bill provides an accessible civil legal response for people seeking protection from domestic and family violence and aims to prevent future acts of violence, rather than focusing, as the criminal law does, on punishing an offender for past behaviour….
A civil process enables a victim of domestic and family violence to make an application for a domestic violence order independently of the police. The standard of proof is lower than for criminal proceedings and this means less evidence is required to obtain a domestic violence order than to obtain a criminal conviction. While a domestic violence order carries the threat of criminal sanctions if it is not complied with, the making of an order does not immediately subject the respondent to a penalty. This is important, as victims of domestic and family violence often want the violence to stop, but do not want the respondent punished.”
The Minister for Community Services and Housing and Minister for Women, the Hon Karen Struthers in the second reading speech stated:
“I am very pleased to rise today to introduce into the House a bill which comprehensively strengthens and modernises Queensland’s 20-year-old domestic and family violence laws. Every woman, man and child has the right to live free from violence and abuse. While it is recognised that anyone can be a victim or perpetrator of domestic violence, the facts show it is most often committed by men against women and children. In 2009-10, the Queensland Police Service recorded 49,372 domestic and family violence occurrences, an increase of 11.5 per cent on the previous year, and laid 8,033 charges for breach of a domestic violence order. The courts received 22,754 applications for domestic violence orders, an increase of eight per cent on the previous year.
People, predominantly women and children, die as a result of domestic and family violence. They suffer significant physical and emotional trauma, work and educational opportunities are affected, lives are disrupted and many victims of this type of violence become homeless.
The new Domestic and Family Violence Protection Bill 2011, which reflects contemporary understanding of domestic violence, is now ready for parliament’s consideration….Queenslanders clearly told the government that, while they supported the current laws, they wanted to see them strengthened to provide greater safety for victims of domestic and family violence. They also wanted to see perpetrators of violence held more accountable for their behaviour. The bill’s key focus is to maximise the safety and protection of victims and see perpetrators of violence held more accountable.
The bill includes a wider definition of violence; provides for immediate protection to victims; allows the police to detain a perpetrator for up to eight hours; provides greater guidance to identify the person most in need of protection; provides greater guidance on the impact of domestic violence on children; provides greater guidance on the use of ouster conditions to keep victims safe; and increases the maximum penalty available when a domestic violence order is breached to three years imprisonment.
The bill represents a contemporary civil response to domestic and family violence…”
The explanatory notes state:
“Policy objectives and the reasons for them
The review of the Domestic and Family Violence Protection Act 1989 is one of the key initiatives under For our Sons and Daughters: A Queensland Government strategy to reduce domestic and family violence 2009-2014.
The Queensland Government strategy was developed to address the significant human and economic costs of domestic violence. Women and children die or suffer significant physical or emotional trauma as a result of domestic and family violence, work and educational opportunities are affected, lives are disrupted and many victims of this type of violence become homeless.
In 2009-2010, the Queensland Police Service recorded 49,372 domestic and family violence occurrences, an increase of 11.5 per cent on the previous year, and laid 8033 charges for breach of a domestic violence order. Of the 62 recorded homicides in 2009-2010, 17 were identified as being related to domestic violence.
The Queensland Government strategy has the following aims:
· to better protect victims by breaking the cycle of violence as early as possible;
· to support communities to promote respectful relationships;
· to provide effective safety and support programs for people who experience domestic and family violence; and
· to respond to people who use domestic and family violence early and hold them accountable.
· The Domestic and Family Violence Protection Bill 2011 addresses the aims of the Queensland Government strategy and focuses on effective and timely responses to provide for the safety of victims of domestic violence and their children and ensuring that perpetrators of violence are held accountable. As contemporary legislation, the Bill will make the law accessible to the community.
· Domestic and family violence is not tolerated in Queensland. The Bill promotes this message through a preamble, which reflects:
· the aims of the Queensland Government strategy and the National Plan to Reduce Violence Against Women and their Children;
· Australia’s obligations under international conventions relating to the elimination of violence against women and children; and
· views expressed during consultation.
The Bill places greater responsibility for the use of violence on perpetrators of violence and increases the ability of the court to focus on the safety and wellbeing of victims.
The Bill also reflects contemporary understandings of domestic and family violence, particularly regarding the types of relationships and behaviours covered by the legislation. The nature and characteristics of domestic and family violence are reflected in the Bill and comprise behaviours used to exert power and control over another person. In addition, the definition of domestic and family violence specifically includes economic, emotional and psychological abuse. The definition also includes behaviour that is physically or sexually abusive, threatening or coercive, or behaviour that in any other way controls or dominates another person. The definition is comprehensive and captures the range of behaviours that, in a contemporary sense, are understood to characterise domestic violence.
In the 22 years since the Domestic and Family Violence Protection Act 1989 was introduced, the community’s awareness of this form of violence has increased. This has been accompanied by a significant increase in the numbers of domestic violence applications, from 2957 in 1990 to 22,754 in 2009-2010. A more contemporary definition of domestic violence will assist police, the courts, support services and the community in identifying this type of violence and responding effectively to the safety needs of victims.
Lastly, the Bill aims to ensure that the person who is most in need of protection is identified. This is particularly important where cross-applications are made, which is where each party to a relationship alleges domestic violence against the other and which often result in cross-orders.
During consultation, stakeholders reported a disproportionate number of cross-applications and cross-orders and expressed the concern that in many instances domestic violence orders are made against both people involved.
This is inconsistent with the notion that domestic violence is characterised by one person being subjected to an ongoing pattern of abuse by another person who is motivated by the desire to dominate and control them. Both people in a relationship can not be a victim and perpetrator of this type of violence at the same time.
A cross-application may be used by a respondent to continue victimising the aggrieved person, to exact revenge or to gain a tactical advantage in other court proceedings. Also, violence used in self-defence and to protect children can be misconstrued as domestic violence if a broader view of the circumstances is not taken…
Structure of the Bill
The Domestic and Family Violence Protection Bill 2011 is structured chronologically. It begins by introducing some of the important definitions in the Act, then progresses to explaining important concepts about the operation of the Act, outlining the powers of the court to make orders, police functions and powers, procedural matters, appeals, and miscellaneous provisions.
The Bill aims to provide greater clarity and structure by using plain language, a logical order to the provisions, introducing more divisions and sub-divisions, and using clear headings for sections, parts and divisions. The proposed structure of the Bill will provide greater clarity to those who interpret and apply its provisions; particularly people who are self-represented in proceedings.”
This Act was passed in the last week of the outgoing Bligh Government with the support of the LNP. It is to commence on 17 September 2012, at which point the Domestic and Family Violence Protection Act 1989 is repealed.
“An Act to provide for protection of a person against violence committed or threatened by someone else if a relevant relationship exists between the persons, and to make amendments of the Criminal Code, the Evidence Act 1977, the Police Powers and Responsibilities Act 2000 and the Police Powers and Responsibilities Regulation 2000 for particular purposes, and to make minor or consequential amendments of this Act and other legislation as stated in a schedule”.
The preamble states:
“In enacting this Act, the Parliament of Queensland recognises the following—
1 Australia is a party to the following instruments—
• Universal Declaration of Human Rights
• United Nations Declaration on the Elimination of
Violence Against Women
• United Nations Convention on the Rights of the Child
• United Nations Principles for Older Persons
2 Living free from violence is a human right and fundamental social value.
3 Domestic violence is a violation of human rights that is not acceptable in any community or culture and traditional or cultural practices can not be relied upon to minimise or excuse domestic violence.
4 Domestic violence is often an overt or subtle expression of a power imbalance, resulting in one person living in fear of another, and usually involves an ongoing pattern of abuse over a period of time.
5 Domestic violence can have serious impacts on people who experience it, including physical, emotional and psychological harm, and can result in death.
6 Perpetrators of domestic violence are solely responsible for their use of violence and its impacts on other people.
7 Domestic violence is most often perpetrated by men against women with whom they are in an intimate partner relationship and their children; however, anyone can be a victim or perpetrator of domestic violence.
8 Domestic violence is a leading cause of homelessness for women and children.
9 Children who are exposed to domestic violence can experience serious physical, psychological and emotional harm.
10 Behaviour that constitutes domestic violence can also constitute a criminal offence.
Minister Struthers stated in the second reading speech:
“The bill includes a preamble which provides the opportunity for us, as the Queensland parliament, to make a clear statement that domestic and family violence is not acceptable in Queensland communities. The preamble also enables us as the parliament to recognise domestic and family violence in the context of relevant international obligations, contemporary social values and human rights. The preamble identifies some of the features and impacts of domestic and family violence and recognises civil responses should operate with, not instead of, the criminal law.”
The explanatory notes state:
“The Bill includes a preamble which provides the opportunity for the Queensland Parliament to make a clear statement that domestic and family violence is a violation of human rights and, as such, is not acceptable in Queensland communities. The preamble recognises domestic and family violence in the context of relevant international obligations, contemporary social values and human rights. It also identifies the nature, dynamics and impacts of domestic and family violence and recognises the civil response set out in the Act should operate with, not instead of, the criminal law.”
Section 3 of the Act provides:
“ (1) The main objects of this Act are—
(a) to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives; and
(b) to prevent or reduce domestic violence and the exposure of children to domestic violence; and
(c) to ensure that people who commit domestic violence are held accountable for their actions.
(2) The objects are to be achieved mainly by—
(a) allowing a court to make a domestic violence order to provide protection against further domestic violence;
(b) giving police particular powers to respond to domestic violence, including the power to issue a police protection notice; and
(c) imposing consequences for contravening a domestic violence order or police protection notice, in particular, liability for the commission of an offence.”
Minister Struthers stated in the second reading speech:
“The bill also contains an expanded purpose which outlines the aims of the bill. These are to prevent or reduce domestic violence, maximise the safety and protection of victims, minimise the disruption to the lives of victims and ensure that perpetrators are held accountable for their actions. I am also pleased to announce the inclusion of principles in the bill. These will provide guidance to those involved in interpreting and administering the legislation, including police, courts, lawyers and members of the community. The overarching principle for administering this legislation is that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.
This principle is to influence every decision made and every action taken under the new law. The preamble and principles provide an overarching framework for the operation of the legislation and will promote a consistent approach to the interpretation of this new law.”
Section 4 provides:
“ (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;
(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.”(emphasis added)
Principle (e) responds to the criticism that has existed since prior to the enactment and the cause of the enactment of the Domestic and Family Violence Protection Act 1989, namely that police failed to use the armoury of weapons available under the Criminal Code or other legislation, and since the enactment of the 1989 too rarely charged perpetrators.
The explanatory notes state:
“The Bill sets out principles to provide a framework for the Act’s administration. The principles are to provide guidance to police, lawyers, courts and members of the community when applying and interpreting the Act.
The provisions dealing with the objects of the Act, the guiding principles and the preamble will bring the Queensland legislation in line with the domestic and family violence legislation in other jurisdictions. They are also consistent with recommendations made by the Australian Law Reform Commission in its Family Violence – A National Legal Response report, released in November 2010, and with feedback from consultation for the review of the Domestic and Family Violence Protection Act 1989.”
The basic test has changed
Under the 1989 Act there is a 3 step test in order to obtain a protection order.
1. That the parties are in the right type of relationship;
2. That an act or a number of acts of domestic violence have occurred;
3. That further acts are likely.
A protection order under the 2012 Act may be made if the court is satisfied that:
1. A relevant relationship exists between the aggrieved and the respondent;
2. The respondent has committed domestic violence against the aggrieved;
3. The protection order is necessary or desirable to protect the aggrieved from domestic violence.
Significantly the previous test of further acts of domestic violence being likely or that the threat is likely to be carried out has been removed. This is following criticism by the Australian Law Reform Commission.
Ground one: Relevant relationship
Section 13 says that there are 3 types of relationships:
• Intimate personal relationships;
• Family relationships;
• Informal care relationships.
At first glance this appears that spousal relationships have been abolished. They have not. Section 14 says that there are 3 types of intimate personal relationships:
• Spousal relationships;
• Engagement relationships;
• Couple relationships.
This is set out in section 15:
“ (1) A spousal relationship exists between spouses.
A reference to a spouse includes a de facto partner. For definitions of spouse and de facto partner, see the Acts Interpretation Act 1954, sections 36 and 32DA.
(2) A spouse, of a person, includes—
(a) a former spouse of the person; and
(b) a parent, or former parent, of a child of the person.
Example of a former parent of a child—
a birth parent who stops being a parent of a child under the Surrogacy Act 2010, section 39(2)(b)
(3) For subsection (2)(b), it is irrelevant whether there is or was any relationship between the parents of the child.”
The definition of “spousal relationship” is now wider because of the widening of the definition of “parent”. This is defined in section 16:
“ (1) A parent, of a child, means—
(a) the child’s mother or father; and
(b) anyone else, other than the chief executive (child protection), having or exercising parental responsibility for the child.
(2) However, a parent of a child does not include—
(a) a person standing in the place of a parent of the child on a temporary basis; or
(b) an approved foster carer for the child; or
(c) an approved kinship carer for the child.
(3) A parent of an Aboriginal child includes a person who, under Aboriginal tradition, is regarded as a parent of the child.
(4) A parent of a Torres Strait Islander child includes a person who, under Island custom, is regarded as a parent of the child.
(5) In this section—
approved foster carer see the Child Protection Act 1999, schedule 3.
approved kinship carer see the Child Protection Act 1999, schedule 3.”
Example of relationship covered under the new Act not covered under the old
Bob and Martha had a child, Billy. By virtue of an order of the Family Court, parental responsibility for Billy vests in Bob, Bob’s sister Penny, and Penny’s partner Veronica.
Mary, Bob, Penny and Veronica are therefore parents of Billy for the purposes of section 16.
Martha commits an act of domestic violence towards Veronica. Veronica may now be able to obtain a protection order against Martha as Martha is Billy’s mother and Veronica is exercising parental responsibility within the meaning of the terms of the Family Law Act in section 16(1)(b) of this Act. By section 15(3): “It is irrelevant whether there is or was any relationship between the parents of the child.”
This example demonstrates why it is necessary to ensure that parties make full disclosure of the existence of orders under the Family Law Act or under the Child Protection Act.
This is defined under section 17:
“An engagement relationship exists between 2 persons if the persons are or were engaged to be married to each other, including a betrothal under cultural or religious tradition.”
It is a repeat of section 12A(1) of the 1989 Act.
This is defined under section 18:
“(1) A couple relationship exists between 2 persons if the persons have or had a relationship as a couple.
(2) In deciding whether a couple relationship exists, a court may have regard to the following—
(a) the circumstances of the relationship between the persons, including, for example—
(i) the degree of trust between the persons; and
(ii) the level of each person’s dependence on, and commitment to, the other person;
(b) the length of time for which the relationship has existed or did exist;
(c) the frequency of contact between the persons;
(d) the degree of intimacy between the persons.
(3) Without limiting subsection (2), the court may consider the following factors in deciding whether a couple relationship exists—
(a) whether the trust, dependence or commitment is or was of the same level;
(b) whether 1 of the persons is or was financially dependent on the other;
(c) whether the persons jointly own or owned any property;
(d) whether the persons have or had joint bank accounts;
(e) whether the relationship involves or involved a relationship of a sexual nature;
(f) whether the relationship is or was exclusive.
(4) A couple relationship may exist even if the court makes a negative finding in relation to any or all of the factors mentioned in subsection (3).
(5) A couple relationship may exist between 2 persons whether the persons are of the same or a different gender.
(6) A couple relationship does not exist merely because 2 persons date or dated each other on a number of occasions.”
This is slightly different to section 12A(2) and to (5) of the 1989 Act which provides as follows:
“12A What is an intimate personal relationship
(2) Also, an intimate personal relationship exists between 2 persons, whether or not the relationship involves or involved a relationship of a sexual nature, if–
(a) the persons date or dated each other; and
(b) their lives are or were enmeshed to the extent that the actions of 1 of them affect or affected the actions or life of the other.
(3) In deciding whether an intimate personal relationship exists under subsection (2), a court may have regard to the following–
(a) the circumstances of the relationship, including, for example, trust and commitment;
(b) the length of time for which the relationship has existed or did exist;
(c) the frequency of contact between the persons;
(d) the level of intimacy between the persons.
(4) An intimate personal relationship may exist whether the 2 persons are the same or the opposite sex.
(5) The lives of 2 persons are not enmeshed merely because the persons date or dated each other on a number of occasions.”
The significance of the changes include:
· It is possible, to have a cyber relationship that would be covered under the Act where the parties live in different parts of the State, have never met but have had daily contact on Facebook, Twitter, text message and by phone. It was problematic as to whether that could happen under the old s.12A
· The reference to “enmeshment” which was always a struggle to determine as to whether or not someone was in an intimate personal relationship with someone else, has been removed.
· The shopping list has been lengthened.
· Even if none of the items in the shopping list have been satisfied, there may still be the relationship.
This is defined under section 19:
“(1) A family relationship exists between 2 persons if 1 of them is or was the relative of the other.
(2) A relative of a person is someone who is ordinarily understood to be or to have been connected to the person by blood or marriage.
Examples of an individual’s relatives—
an individual’s spouse, child (including a child 18 years or more), stepchild, parent, step-parent, sibling, grandparent, aunt, nephew, cousin, half-brother, mother-in-law or aunt-in-law
Examples of an individual’s former relatives—
• the person who would be the individual’s mother-in-law if the individual was still in a spousal relationship with the person’s son or daughter
• the person who would be the step-parent of the individual if the spousal relationship between the person and the person’s former spouse, the individual’s parent, had not ended
• the individual’s step-siblings when the parent they do not have in common has died
(3) For deciding if someone is connected by marriage, any 2 persons who are or were spouses of each other are considered to be or to have been married to each other.
(4) A relative of a person (the first person) is also either of the following persons if it is or was reasonable to regard the person as a relative especially considering that for some
people the concept of a relative may be wider than is ordinarily understood—
(a) a person whom the first person regards or regarded as a relative;
(b) a person who regards or regarded himself or herself as a relative of the first person.
Examples of people who may have a wider concept of a relative—
• Aboriginal people
• Torres Strait Islanders
• members of certain communities with non-English speaking
• people with particular religious beliefs
(5) In deciding if a person is a relative of someone else—
(a) a subsection of this section must not be used to limit another subsection of this section; and
(b) each subsection is to have effect even though, as a result, a person may be considered to be a relative who would not ordinarily be understood to be a relative.”
It is the same as the definition under the 1989 Act in section 12B.
Informal care relationship
This is provided for under section 20:
“(1) An informal care relationship exists between 2 persons if 1 of them is or was dependent on the other person (the carer) for help in an activity of daily living.
Examples of help in an activity of daily living—
• dressing or other personal grooming of a person
• preparing a person’s meals or helping a person with eating meals
• shopping for a person’s groceries
• telephoning a specialist to make a medical appointment for a person
(2) An informal care relationship does not exist between a child and a parent of a child.
(3) An informal care relationship does not exist between 2 persons if 1 person helps the other person in an activity of daily living under a commercial arrangement.
Example for subsection (3)—
The relationship between a person and a nurse who visits the person each day to help with bathing and physiotherapy is not an informal care relationship because the nurse visits the person under a commercial arrangement made between the person and the nurse’s employer.
(4) For subsection (3)—
(a) a commercial arrangement may exist even if a person does not pay a fee for the help provided under the arrangement; and
Example for paragraph (a)—
The provision of help by a voluntary organisation for which a person does not pay a fee may still be under a commercial arrangement.
(b) an arrangement is not a commercial arrangement because 1 person receives a pension or allowance, or reimbursement for the purchase price of goods, for the
help provided under the arrangement; and
(c) an arrangement is not a commercial arrangement if 1person pays a fee for the help provided under the arrangement because of domestic violence committed by the other person.”
There is no change between that definition and the definition under section 12 of the 1989 Act.
Ground 2: Domestic violence
Minister Struthers stated in the second reading speech:
“A significant area of reform is the definition of domestic violence contained in the bill. The definition of domestic violence has significant implications for how this type of violence is identified and treated by police, the courts, support services and the community. To enable effective responses to domestic and family violence in Queensland, the bill includes a wider and more contemporary definition of domestic violence. A contemporary understanding of domestic violence refers to a person being subjected to an ongoing pattern of abusive behaviour by an intimate partner or family member. This behaviour is motivated by a desire to dominate, control and oppress and to cause fear. Although any act of aggression in a relationship is unacceptable, domestic violence refers to this particular type of abuse. It is this type of abuse that is the focus of the bill.
The definition of domestic violence included in the bill is wider than the definition in the current domestic violence laws. It includes behaviour that is physically or sexually abusive; emotionally, psychologically or economically abusive; threatening or coercive; or behaviour that in any other way controls or dominates another person causing fear. By including this wider definition, the breadth of behaviours used to control and dominate in a relationship characterised by domestic violence will be captured. This means that police, magistrates, lawyers and members of the public will be more readily able to identify situations where domestic violence has occurred. This change is consistent with the views expressed during consultation and with the recommendations made by the Australian Law Reform Commission in its report Family violence—a national legal response released in November 2010.”
The explanatory notes state:
“Definition of domestic violence
The Domestic and Family Violence Protection Act 1989 currently defines domestic violence through a series of specific behaviours, including wilful injury, wilful damage of property, intimidation or harassment of a person, and indecent behaviour without a person’s consent.
The definition of ‘domestic violence’ set out in clause 8 of the Bill reflects the contemporary understanding of domestic violence, and includes behaviour that is physically or sexually abusive, emotionally, psychologically or economically abusive, threatening or coercive, or behaviour that in any other way controls or dominates another person causing fear.
This definition takes account of recommendations made by the Australian Law Reform Commission in its Family Violence – A National Legal Response report, released in November 2010, current research, feedback from consultation and definitions used in other jurisdictions.
The definition of domestic violence is contained in section 8 which provides:
Meaning of domestic violence
” (1) Domestic violence means behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that—
(a) is physically or sexually abusive; or
(b) is emotionally or psychologically abusive; or
(c) is economically abusive; or
(d) is threatening; or
(e) is coercive; or
(f) in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone
(2) Without limiting subsection (1), domestic violence includes the following behaviour—
(a) causing personal injury to a person or threatening to do so;
(b) coercing a person to engage in sexual activity or attempting to do so;
(c) damaging a person’s property or threatening to do so;
(d) depriving a person of the person’s liberty or threatening to do so;
(e) threatening a person with the death or injury of the person, a child of the person, or someone else;
(f) threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;
(g) causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;
(h) unauthorised surveillance of a person;
(i) unlawfully stalking a person.
(3) A person who counsels or procures someone else to engage in behaviour that, if engaged in by the person, would be domestic violence is taken to have committed domestic violence.
(4) To remove any doubt, it is declared that, for behaviour mentioned in subsection (2) that may constitute a criminal offence, a court may make an order under this Act on the basis that the behaviour is domestic violence even if the behaviour is not proved beyond a reasonable doubt.
(5) In this section—
coerce, a person, means compel or force a person to do, or refrain from doing, something.
unauthorised surveillance, of a person, means the unreasonable monitoring or tracking of the person’s movements, activities or interpersonal associations without
the person’s consent, including, for example, by using technology.
unlawful stalking see the Criminal Code, section 359B.”
The definition is very similar to the definition of “family violence” to take effect in June 2012 as set out above under the Family Law Act.
The definition of “domestic violence” is significantly wider, at first blush, than the definition under the 1989 Act.
Comparison of new and old definitions
Comment: Physically abusive is considerably different from wilful injury as the former does not require actual injuries.
Indecent behaviour to the other person without consent.
Intimidation or harassment.
Intimidation or harassment.
No direct comparison unless it was able to be shown to have been intimidation or harassment.
Threat to commit wilful injury, wilful damage, intimidation or harassment or indecent behaviour to the other person without consent; or intimidation.
In any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.
No direct comparison, although it may be intimidation, harassment or threat.
Examples under section 8(2)
Causing personal injury to a person or threatening to do so.
Wilful injury or threat to commit that act.
Coercing a person to engage in sexual activity or attempting to do so.
This was problematic as the previous definition required “without consent”, whereas the consent may have been given under coercion. Coercive behaviour may have been intimidation or harassment.
Ground 3: Necessary or desirable
The explanatory notes state:
The current grounds of which a court must be satisfied in determining whether or not to make a protection order are that:
• an act of domestic violence has occurred;
• a domestic relationship exists; and
• the person who committed domestic violence is likely to commit domestic violence again or, if the act of domestic violence was a threat, that the person is likely to carry out the threat.
The Bill replaces the ‘likelihood’ element with a requirement that a court be satisfied that an order is necessary or desirable to protect an aggrieved from domestic violence. This change focuses the court on the protective needs of the aggrieved and whether imposing conditions on the respondent’s behaviour is necessary or desirable to meet these needs. The court may still consider evidence which suggests that domestic violence may occur again, or a threat may be carried out, however the court does not need to be satisfied that such an event is ‘likely’. Further, a court can look at other factors, including whether an aggrieved is in fear, when it is determining this element.
The new grounds also require a court to consider the guiding principles in deciding whether an order is necessary or desirable for the protection of the aggrieved. The priority of the Bill is the safety and wellbeing of the aggrieved and the grounds for making a protection order are directed toward achieving this aim.These measures are also consistent with the objective of ensuring that orders are only made for the benefit of the person who is in need of protection and are intended to reduce inappropriate cross applications and cross-orders.”(emphasis added)
There is also a qualifier contained in section 37(2):
“(2 In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence, the court—
(a) must consider the principles mentioned in section 4; and
(b) may consider whether a voluntary intervention order has previously been made against the respondent and whether the respondent has complied with the order.”
A voluntary intervention order requires the respondent to attend a perpetrator’s program but the court may only make or amend a voluntary intervention order if the respondent:
A. is present in court; and
B. agrees to the order being made or amended; and
C. agrees to comply with the order as made or amended .
Minister Struthers stated in the second reading speech:
The Bill also provides for an order to be made requiring a respondent to attend an approved intervention program or counselling. The current Act provides a broad power for courts to impose conditions that the court considers necessary and desirable in the interests of the aggrieved, any named person and the respondent. It is not clear whether this power extends to ordering a respondent to attend a program or counselling. The Bill provides a clear power for the court to make an order requiring a respondent to attend an approved intervention program or counselling.”
Who can a domestic violence order protect?
There is greater clarification as to who is protected. Section 24 provides:
“(1) As well as the aggrieved, the following persons can be
protected by a domestic violence order—
(a) a child of the aggrieved;
(b) a child who usually lives with the aggrieved;
(c) a relative of the aggrieved;
(d) an associate of the aggrieved.
(2) A child who usually lives with the aggrieved means a child who spends time at the residence of the aggrieved on a regular or on-going basis.
(3) An associate of the aggrieved means either of the following persons if it is reasonable to regard the person as an associate—
(a) a person whom the aggrieved regards as an associate;
(b) a person who regards himself or herself as an associate of the aggrieved.
Examples of persons who could be associates of the aggrieved—
• a person who is the current spouse or partner of the aggrieved
• a person who works at the same place as the aggrieved
• a person who lives at the same place as the aggrieved
• a person who provides support or assistance to the aggrieved,
including, for example, a friend or neighbour
(4) A person mentioned in subsection (1) is protected by being specifically named in the domestic violence order under section 52 or 53.
(5) The person may be specifically named in the domestic violence order when it is made or at a later time if it is varied.
(6) The specifically named person is called a named person.”
The new section 24 specifically refers to “child of the aggrieved” and “the child who usually lives with the aggrieved”.
Example of a child who usually lives with the aggrieved
Fred and Ethel are married. It is their second marriage. Ethel was previously married to Ricky. Ethel and Ricky have a child, Lucy. Due to the long distance between Ricky and Ethel, Lucy lives with Ricky full time, but spends her holidays with Fred and Ethel. If Fred were the aggrieved, then Lucy is the child who usually lives with the aggrieved as she “spends time at the residence” of Fred and Ethel “on a regular or on-going basis”.
The explanatory notes state as to naming children on orders:
“Currently, the Domestic and Family Violence Protection Act 1989 does not provide any specific guidance to a court when it is considering whether to include a child as a named person on a domestic violence order. When a person, including a child, is named on an order, the respondent’s behaviour towards the named person is subject to the conditions which relate to that person. The general requirements for including a relative or associate on an order apply, and these refer to the occurrence, or likely occurrence, of an act of ‘associated domestic violence’, which is violence directed at a relative or associate.
The effects on children of witnessing or being exposed to domestic violence are well documented and can include medium and long term psychological harm. The Bill includes specific considerations for including children on orders which include whether naming the child is necessary or desirable to protect the child from being exposed to domestic violence.
What it means for a child to be ‘exposed’ to domestic violence is defined in clause 10 as the child seeing or hearing, or otherwise experiencing the effects of domestic violence committed by a respondent. A non-exhaustive list of examples of being exposed to domestic violence is set out in the provision.”
Who can apply for a protection order?
Section 25 sets out who can apply:
· An aggrieved;
· An authorised person for an aggrieved;
· A relevant police officer;
· A person acting under another Act for the aggrieved, for example a guardian for a personal matter or an attorney for a personal matter.
There is no substantive change to these provisions as compared to section 14 of the 1999 Act.
Temporary protection orders
Section 27 sets out the bases for making temporary protection orders:
· Police officer applies for a temporary protection order.
· The applicant has sought a temporary ex-parte variation.
· The applicant for a protection order has sought an ex-parte order.
· There is the adjournment of the hearing of an application for a protection order.
· The court adjourns the hearing of an application for a variation of a domestic violence order.
· The court adjourns the making of a protection order on its own initiative in sentencing proceedings.
· The court adjourns Children’s Court proceedings in which the court on its own initiative makes a protection order.
The test is essentially the same as under the 1989 Act. The court has to be satisfied before it makes a temporary protection order that:
· A relevant relationship exists between the aggrieved and the respondent; and
· That the respondent has committed domestic violence against the aggrieved.
However, neither of these is required if a temporary protection order is sought as part of a variation of an existing protection order presumably because a court would have been satisfied previously about a relevant relationship existing and that presumably the purpose of the order is to prevent further acts of domestic violence occurring when there is already an order prohibiting acts of domestic violence. The evidence required for obtaining a temporary protection order is only “that the court considers sufficient and appropriate having regard to the temporary nature of the order” which is a repeat of the requirement under the 1989 Act.
The test for temporary protection orders in variation applications is that the court must be satisfied “that the temporary protection order is necessary or desirable to protect the aggrieved, or another person named in the domestic violence order, from domestic violence, pending a decision on the application for the variation.”
There will be two mandatory conditions:
1. The respondent must be of good behaviour and must not commit domestic violence or associated domestic violence.
2. If a child of the aggrieved, or a child who usually lives with the aggrieved, is a named person in the order, the respondent must not expose the child to domestic violence.
Service of applications
An application for a protection order must be personally served by a police officer on the respondent.
The courts will have the ability if an application is made in one court and a cross application is filed in another court to transfer the matter to the other court or to hear both applications together.
There will still be the requirement to serve the cross application at least one business day before the day of the hearing of the original application;remembering that service now must be effected by police.
Minister Struthers stated in the second reading speech about cross applications:
“The Bill’s objective is to ensure that victims of domestic and family violence are provided with protection against future acts of domestic violence. One of the issues I have been particularly interested in addressing in the Bill is the concerning number of cross-applications that come before the court under the current legislation. This is where each party to a matter alleges domestic violence against the other.
During consultation, stakeholders reported a disproportionate number of cross-applications and expressed the concern that in many instances domestic violence orders are made against both people involved. This is inconsistent with an understanding of domestic violence that comprises one person being subjected to an ongoing pattern of abuse by another person who is motivated by the desire to dominate and control them. It is not reasonable to accept, except in exceptional circumstances, that both people in a relationship can be a victim and perpetrator of this type of violence. For example, violence used in self-defence and to protect children can be misconstrued as domestic violence if a broader view of the circumstances is not taken.
It is disturbing that legislation with the purpose of providing for the safety of victims of domestic violence appears to be used, in some instances, to further victimise vulnerable Queenslanders. Often in these circumstances, victims of violence consent to orders against them to avoid further court appearances or the prospect of a hearing which will require them to give evidence before the court. This is contrary to the purpose of the laws and does not provide a fair outcome to victims.
As a result of this feedback, the Bligh Government is refocusing the law to ensure that the person most in need of protection is identified. This will be achieved by including guidance in the principles for administering the Act. As mentioned earlier, the Bill provides for an overarching principle that the safety, protection and wellbeing of people who fear or experience domestic violence is paramount.
One of the five principles that sit under the priority principle is that, where there are conflicting accounts of domestic violence or indications that both people 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.
A further measure to reduce the number of cross-applications is included in the provisions relating to the making of police protection notices. The Bill does not permit cross-notices being issued. It is likely that this provision will reduce the number of cross-orders that are ultimately made.”
Changes with ex-parte orders
There is a significant changes as to the test required in obtaining ex-parte orders. It is expected that it will be considerably easier to obtain them. Under the 1989 Act, the requirement was that it appeared to the court:
(a) The aggrieved or a named person is in danger of personal injury; or
(b) Property of the aggrieved or a named person is in danger of substantial damage.
From talking to various domestic violence advocates, it appears that different magistrates had different views of that section. Some followed it literally. Others were much more liberal in making temporary protection orders on an ex-parte basis.
The new test will merely be whether the court “is satisfied that the making of a temporary protection order despite the respondent having not been served with the application is necessary or desirable to protect the aggrieved, or another person named in the application, from domestic violence”.
Under the 1989 Act there has been a controversy between the views of some magistrates that before a consent order can be made the magistrate must be satisfied, based on the application before him or her that an act or a number of acts of domestic violence have occurred and that, therefore, further acts are likely; and the views of other magistrates that because the form has been agreed to then that is all that is required.
There has also been differing practice as to whether or not orders can be made on a “without admission” basis. Some magistrates from my experience have readily done so and others have refused, saying that it is not provided for in the legislation.
There will now be two requirements:
1. There is a consent of the parties to the making of an order or the parties do not oppose the making of the order.
2. The court must be satisfied the relevant relationship exists between the aggrieved and the respondent.
Significantly the court does not need to be satisfied that there have been acts of domestic violence or that the protection order is necessary or desirable to protect the aggrieved from domestic violence.This may be significant for those with proceedings under the Family Law Act, or those who may have issues under the Migration Regulations.
The form of order can be made “whether or not the respondent admits to any or all of the particulars of the application”.
The order cannot be consented to by an aggrieved when it is a police application unless the aggrieved is not present in court and cannot, after all reasonable enquiries, be contacted to give consent and the applicant police officer reasonably believes that the order promotes the safety, protection and wellbeing of the aggrieved, and any named person or any child affected by the order. Children and associates will be named separately. The court can conduct a hearing in relation to the particulars of the application before making a consent order;and may refuse to make or vary an order if it believes in doing so “may pose a risk to the safety of an aggrieved, any named person, or any child affected by the order”.
The test in relation to associates is that naming the relative or associate “is necessary or desirable to protect the relative or associate from associated domestic violence”. The test in relation to children is that:
“naming the child in the order is necessary or desirable to protect the child from –
(a) Associated domestic violence; or
(b) Being exposed to domestic violence committed by the respondent.”
The test under the 1989 Act was that the associate had either been subject to domestic violence or that it was “likely”. The change in words here is significant. The criticism of domestic violence advocates of some magistrates was that even in cases where the respondent had punched the aggrieved in the face when the aggrieved was holding the baby, it was not “likely” that the baby would be subjected to associated domestic violence. Clearly under this test it would be necessary or desirable to protect the child from being exposed to domestic violence.
There will now be a requirement upon the court to enquire as to whether there are any children, irrespective of whether their names are mentioned in the application. The clear inference from the legislation is an intention wherever possible for children to be named.
There is also the requirement to obtain information from the Department of Communities (Child Safety Services) if the respondent contests the naming of the child in the order or the imposition of any conditions concerning the child.
If there is a named person who is an adult there is a standard condition that the respondent is to be of good behaviour towards and not commit associated domestic violence against them. If there is a named person who is a child the standard condition is to be of good behaviour towards the child, not commit associated domestic violence against the child and not expose the child to domestic violence.
The court may impose any other condition the court considers necessary in the circumstances and desirable and interest to the aggrieved, any named person or the respondent. The principle of paramount importance to the court must be the principle of the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.
The test of “necessary” and “desirable” is identical to that under the 1989 Act (section 25(2)). The paramount importance test has changed. The 1989 Act requirement is:
“The following matters are to be of paramount importance to the court when it imposes conditions on the respondent –
(a) the need to protect the aggrieved and any named person;
(b) the welfare of the child of the aggrieved.”
There are similar example conditions set out under the new Act as there were under the 1989 Act. Sections 58, 59; section 25 1989 Act.
However, there are changes:
The “no contact” provision under the 1989 Act allowed a lawyer to contact the aggrieved or named person or another person, including a lawyer to locate the aggrieved or named person for a purpose authorised by an Act.
It has not been uncommon for solicitors to write letters on behalf of a respondent to the aggrieved seeking contact between the respondent and the children. To do so when there is a “no contact” order would appear to be an offence unless there were proceedings of some kind on foot at that time. This is because the definition of “lawyer” in section 60:
“means a lawyer who has represented the respondent in relation to a proceeding.”
In other words, if there are no proceedings on foot of any kind, then the lawyer making contact with the aggrieved when there is a “no contact” clause against the respondent may be a party to an offence, e.g., aiding and abetting the breach of a no contact order by his or her client.
There is the ability for a victim advocate to contact the aggrieved or named person.
It is essential in my view that standard no-contact clauses issued by magistrates under the new Act have a standard exception for contact via lawyers, so that matters to do with children and property settlement can be negotiated without the necessity of commencing proceedings, perhaps prematurely.
No contact clauses between parents and children
There will now be a requirement that the condition:
“must limit contact between the respondent and the child only to the extent necessary for the child’s safety, protection and wellbeing”.
Note – In considering whether to impose a condition, under section 57(2), the principle of paramount importance to the court must be the principle of the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.”
There is now the ability to provide for an order for the protection of an unborn child to take effect on the birth of the child.The explanatory notes state:
“This condition will enable a court to make an order for the protection of an unborn child where an aggrieved is pregnant at the time a domestic violence order is made. The condition takes effect when the child is born. This is to address the concern that an aggrieved does not have the capacity to apply for a variation of an order to include, as a named person, a recently born child in the period of time immediately following his or her birth. This period of time can be a time where an aggrieved and a new born child are particularly vulnerable.”
In addition to any other conditions that the court considers, the court needs to consider the following:
(a) Whether the aggrieved and any child living with the aggrieved can continue to live safely in the residence if the ouster condition is not made;
(b) The desirability of preventing or minimising disruption to the aggrieved and any child living with the aggrieved, including by minimising disruption to their living arrangements allowing them to continue, or return, to live in the residence;
(c) The importance of the aggrieved and any child living with the aggrieved being able to maintain social connections and support that may be disrupted or lost if they can not live in the residence;
(d) The need to ensure continuity and stability in the care of any child living with the aggrieved;
(e) The need to allow child care arrangements, education, training and employment of the aggrieved and any child living with the aggrieved to continue without interruption;
(f) The particular accommodation needs of the aggrieved and any child who may be affected by the ouster condition;
(g) The particular accommodation needs of the respondent.
Examples of particular accommodation needs for paragraphs (f) and (g) –
· accommodation needs that relate to a disability or impairment;
· accommodation needs that relate to the number, or age, of the children who require accommodation.
The court must give reasons for imposing or not imposing the condition. The court can impose a return conditionand consideration needs to be given as to whether police need to attend to supervise.
Minister Struthers stated in the second reading speech:
The Bill includes greater guidance for the court when considering whether to make ouster conditions. The court will also be required to provide reasons if it does not impose an ouster condition when it is sought.
Ouster conditions prevent a respondent from remaining at, entering or attempting to enter certain premises. This may include premises where the respondent and the aggrieved live or lived together, or where the aggrieved or a named person lives, works or frequently goes. The ouster condition can also apply to premises in which the respondent has a legal interest, such as a property owner or tenant.
Exposure to, or fear of, domestic violence is a leading cause of homelessness. It is easier to find accommodation for a single person than for a mother and children. The Bill increases the clarity about the considerations for the court in order to ensure that ouster conditions are made safely, to protect victims of violence.
The other important feature of ouster provisions is that disruption is minimised for the victim of violence. This extends further than living arrangements and includes people’s social and community connections. Maintaining connections and supports can be critical to the ability of victims of violence, including children, to recover after the experience of living with, or being exposed to, domestic violence.”
The explanatory notes state:
“The Bill proposes that a court can issue an ouster condition that prevents a respondent from remaining at premises, entering or attempting to enter premises, or approaching within a stated distance of premises (clause 63(1)). This condition can apply to premises in which the respondent has a legal or equitable interest, or where the aggrieved and respondent live or have lived together (clause 63(2)).
The making of an ouster condition impacts on the rights and liberties of an individual.
The effect of an ouster condition is largely carried over from the provisions of the Domestic and Family Violence Protection Act 1989 (sections 25 and 25A). Additional guidance is provided in the Bill about the matters that are to be considered by a court when it is deciding whether to make an ouster condition (clause 64(2)). Also, clause 64(3) requires a court to give reasons for imposing or not imposing an ouster condition when one is sought.
The overriding consideration for the court in deciding whether to impose any condition, including an ouster condition, is that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount. Further, the court only considers whether to impose conditions on a respondent after first deciding that the respondent has committed domestic violence against the aggrieved.
The matters to be considered by a court include a number of matters specific to the needs of the aggrieved and any child living with the aggrieved (clause 64(2)(a) to (f)) and the accommodation needs of the respondent (clause 64(2)(g)). By setting out these specific considerations, the court will have increased guidance on matters relevant to the safety, welfare and wellbeing of the aggrieved and any children of the aggrieved in imposing an ouster condition, while retaining the need to consider the accommodation needs of the respondent.
Although the Bill does not prevent an ouster condition being made in the absence of notice to a respondent, this should only occur in situations where a temporary order is sought on an urgent basis before there is an opportunity to serve a respondent (clause 47). The ouster condition only becomes enforceable once the respondent is served. The respondent will have the opportunity to present submissions to the court at the next return date.
The considerations included in the ouster provisions enable the court to balance considerations relevant to the safety and welfare of the aggrieved and any children of the aggrieved with the accommodation needs of the respondent. The processes in the Bill for hearing matters ensure that a respondent is provided with an opportunity to respond to an application for an ouster condition. In addition, the requirement to provide reasons ensures there is transparency in how the considerations have been applied in the decision-making process.”
Disclosure of family law orders
There is a positive obligation to an applicant to disclose any family law order. This is defined as any order, injunction, undertaking, plan or recognisance mentioned in section 68R of the Family Law Act or the equivalent section 176 of the Family Court Act 1997 (WA). Those orders are:
(a) A parenting order, to the extent to which it provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child; or
(b) A recovery order (as defined in section 67Q) or any other order under this Act, to the extent to which it expressly or impliedly requires or authorises a person to spend time with the child; or
(c) An injunction granted under section 68B or 114, to the extent to which it expressly or impliedly requires or authorises a person to spend time with the child; or
(d) To the extent to which it expressly or impliedly requires or authorises a person to spend time with the child;
(i) an undertaking given to, and accepted by, a court exercising jurisdiction under this Act; or
(ii) a registered parenting plan within the meaning of ss.63C(6); or
(iii) a recognisance entered into under an order under this Act.
This has been seen as a rarely used provision. This section of the Family Law Act enables magistrates to make temporary, 21 day variations or suspensions of contact or residence orders. It has proved very difficult at times to persuade magistrates to exercise power under section 68R. Indeed, magistrates at times have not known of the existence of section 68R.
There is now a positive requirement before making or varying any domestic violence order for the court to have regard to any family law order of which the court has been informed and if there is any order by which contact may have been ordered:
“consider whether to exercise its power, under the Family Law Act 1975 (Cth), section 68R … to revive, vary, discharge or suspend the family law order”.
There are two significant limitations on that power under section 68R:
· The court must not diminish the standard of protection given by a domestic violence order for the purpose of facilitating consistency with the family law order. In other words, the court can decide to make a protection order that is seemingly at odds with an order under the Family Law Act.
· The court must give the parties to the proceeding a reasonable opportunity to present evidence and to prepare and make submissions about the exercise of the power,but that limitation does not apply if the court is deciding whether or not to make an ex-parte temporary protection order.
An application for a variation may be made by:
· The aggrieved;
· The respondent;
· A named person;
· An authorised person for the aggrieved;
· A person acting under another Act for the aggrieved, respondent or a named person; or
The application must:
· Be in the approved form;
· State the grounds on which it is made;
· State the nature of the variation sought;
· If not made by a police officer – be verified by a statutory declaration;
A named person may only seek variation in relation to the naming of that person in the order or a condition relating to the named person.
There is no longer the requirement to serve the application on the Commissioner of Police,but instead the Clerk of the Court gives a copy to the closest police station “where the respondent lives or was last known to live”.Significantly, however, under section 95 a court must not vary a domestic violence order unless it is satisfied that the Police Commissioner has been given a copy. The Police Commissioner is notified by the Clerk of the Court which must occur within one business day after the day of the application is made or an order is granted.
There is a requirement that if the applicant is anyone other than the respondent the application must be served by police on the respondentand if the application for a variation is the respondent it must be served on the aggrieved and “any named person who is affected by the application for the variation”which presumably would include the parties’ children.
Applicants for variation other than the respondent may seek that the matter be heard ex-parte.
The court must consider whether a variation proposed to be made may adversely affect the safety, protection or wellbeing of the aggrieved or any named person. When considering whether to make the variation the court must have regard to –
(a) An expressed wish of the aggrieved or named person; and
(b) Any current contact between the aggrieved or named person and the respondent; and
(c) Whether any pressure has been applied, threat has been made, to the aggrieved or named person by the respondent or someone else for the respondent; and
(d) Any other relevant matter.
Length of protection orders
They can continue to be made up to two years or for a longer period if there are special reasons.
Role of police/Police protection notices
The explanatory notes state:
“Police functions and powers
The Bill includes some changes to the powers that police officers have when they are responding to domestic violence incidents or dealing with people who have committed acts of domestic violence. This will increase the capacity of the police to provide quick and effective responses for victims of domestic violence. These changes include:
• Obligation of police officer to investigate domestic violence: The Domestic and Family Violence Protection Act 1989 places an obligation on a police officer to investigate suspected domestic violence and to take action, as appropriate, to respond. The Bill makes it clear that this obligation is in addition to a police officer’s responsibility to investigate a criminal offenceand also includes a requirement for an officer to make a written record of his or her reasons for not taking any action after an investigation.
• New power to issue a police protection notice: A police protection notice is a short-term response to low to medium-level domestic violence incidents that will provide immediate protection to the aggrieved. A notice will act as an application to the court for a protection order. A police protection notice also includes the option of a 24 hour ‘cool-down’ condition, whereby the respondent to the notice is required to leave a stated premises and not approach or contact the aggrieved during the ‘cool-down’ period. A respondent who breaches a notice can be charged with an offence which may result in up to 2 years imprisonment. Police protection notices will be particularly effective in remote and rural areas where courts sit less frequently.
• Police powers of detention: The detention powers of police are to be used in high risk situations, where there is a danger of injury to a person or damage to a person’s property. The proposed changes will allow a person’s detention to continue for up to 8 hours while a person is intoxicated and incapable of understanding the requirements of an order, application, or release conditions, and for up to 4 hours where a person’s demeanour may present an ongoing danger of injury or property damage. Police officers will also have the ability to apply to a magistrate for an extension of the initial four hour detention period for a further four hours in limited circumstances. The detention powers are subject to strict requirements and include obligations to record particulars about the detention in the enforcement acts register that is required to be kept under the Police Powers and Responsibilities Act 2000.
• Power to require a respondent to remain for the purpose of service:
This power will enable police to require a person named as a respondent to an application or order to remain at a location for the time reasonably necessary for the police officer to serve the respondent or advise the respondent of the conditions of an order if the officer does not have a copy of the order. This power will also apply while a police protection notice is issued and served. This will improve the safety of victims of domestic and family violence by increasing the opportunities for police to ensure that service requirements are met which means that protection orders can be made by the court and domestic violence orders can be enforced.”(emphasis added)
In addition to taking the respondent into custody at the scene, the police can, instead, issue a notice at the scene naming the respondent as a respondent, stating that the respondent must be of good behaviour towards the aggrieved and must not commit domestic violence against the aggrieved and have a cool-down condition lasting not greater than 24 hours prohibiting the respondent from doing any or all of the following:
(a) Entering, attempting to enter, or remaining at, stated premises, or approach within the stated distance of stated premises;
(b) Approaching, attempting to approach, within a stated distance of the aggrieved;
(c) Contacting, attempting to contact, or asking someone else to contact, the aggrieved.
Significantly police cannot issue a cross notice.
If police issue a police protection notice that includes a cool-down condition, police must consider the accommodation needs of the respondent and take any reasonable steps necessary to ensure the respondent has access to temporary accommodation. A police protection notice is taken to be an application for a protection order made by a police officer. If there is a conflict between a police protection notice and an existing domestic violence order and it is not possible for the respondent to comply with both, the existing domestic violence order prevails.
Taking respondents into custody
Police will still have the power to do so for up to 8 hours;but during which time police cannot question the respondent about their involvement in the commission of an offence or suspected offence. Police can obtain an extension of the period of detention but the application to the court must be made in a way that gives the respondent or the respondent’s lawyer “a reasonable opportunity to prepare and make submissions”.
The extended period of detention in any case is limited to 8 hours.
There is still legality for police to obtain temporary orders by fax or phone.
Police will now be able to require a respondent to stay at a place for up to an hour or “a longer reasonably necessary time, having regard to the particular circumstances” to await service of an application for a protection order, a protection order or a police protection notice; it being an offence not to comply with the direction unless the person has a reasonable excuse. However, the great limitation on this power is that:
“A police officer must remain in the presence of the person while the person remains at the appropriate place.”
The UCPR apply:
“only to the extent that –
(a) this Act expressly states that a rule applies; and
(b) the application of the rule is not inconsistent with this Act.”
Section 142(2) sets out provisions of the UCPR that apply, set out below:
Provision that applies
Chapter 1 preliminary including Rule 5(3)
“In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.”
“The court may impose appropriate sanctions if a party does not comply with these Rules or an order of the court.”
Proceeding incorrectly started by claim instead of application.
Oral applications may be made including to impose conditions required in the interests of justice to prevent prejudice to the other parties.
Who may be a litigation guardian.
Appointment of litigation guardian.
Definitions for service chapter.
DX may be used subject to a practice direction from the Chief Justice.
Service to occur the same day has to occur by 4pm.
Manner of personal service.
Personal service: persons with impaired capacity.
Personal service: prisoners.
How ordinary service is performed.
Affidavit of service.
Identity of person served.
Special requirements for service by fax.
Chapter 4, Part 6
Rule 123 Service outside Queensland, ie in accordance with the Service and Execution of Process Act 1992.
Chapter 4, Part 7
Ordinary service outside Australia.
Chapter 11, Part 4, other than Rules 417, 418 and 419 subpoenas.
Rule 417 An order for the payment of any loss or expense incurred in complying with the subpoena.
Rule 418 Loss and expenses for compliance with the subpoena.
Rule 419 Conduct money in addition to payment of amounts payable as normal witness expenses.
Chapter 18 Appellant proceedings- appeals to the Court of Appeal : Rule 971 to the extent it relates to a filing fee for an appeal.
Any other provisions prescribed under a Regulation.
Not stated at this time.
Unless the application of the Justices Actor in respect of Children’s Court proceedings the Children’s Court Act is inconsistent with the 2012 Act, the provisions of those Acts apply.
There is the ability of the court to issue directions in relation to a particular proceeding before the court.
The test under the 1989 Actremains essentially the same, namely the court is not bound by the rules of evidence
“or any practices or procedures applying to courts of record”
“may inform itself in any way it considers appropriate”.
There remain the same limitations on issuing subpoenas to children to produce documents or compelling them to be witnesses.
If the aggrieved, a child, or a relative or associate of the aggrieved who is named in the application that relates to the proceeding gives evidence, the court must consider whether to make any of the following orders:
(a) That the particular witness give evidence outside the courtroom by use of an AV link;
(b) That the protected witness give evidence outside the courtroom and be recorded, then replayed in the courtroom;
(c) That a screen or one way glass can be placed so that the protected witness cannot see the respondent;
(d) While the protected witness is giving evidence that the respondent be in another room with access to an AV link;
(e) That the protected witness have a support person;
(f) Accommodate the protected witness in such a way to minimise his or her distress if he or she has a physical or mental disability; and
(g) Any other alternative arrangement the court considers appropriate.
If a child is the protected witness then there are mandatory requirements.
Similarly if the respondent is self-represented the court may order that the respondent not cross examine the protected witness in person. If the court is satisfied that the cross examination is likely to cause a protected witness to:
(a) Suffer emotional harm or distress; or
(b) Be so intimidated as to be disadvantaged as a witness,
and if the protected witness is a child the court must make an order that the respondent may not cross examine in person.
Instead of summonses under the 1989 Act, the court may issue subpoenas.
Ordinarily each party bears their own costs.
Costs orders can still be made if the application is:
· Deliberately false;
· Frivolous; or
Those costs orders are made against the applicant. The significant change is a requirement that the court must “hear” and “decide to dismiss” on one of the four stated grounds. There was not previously the stated requirement to “hear” and “decide”.
There has been some controversy as to whether or not magistrates can award substantial costs in cases where an application meets one of the four statutory criteria. Some magistrates have been of the view that the provisions of the UCPR apply and that therefore substantial costs orders can be made. Other magistrates have been of the view that the provisions of the Justices Act apply and therefore there is a very limited costs making power, namely $1,500 when instructions of preparation for the hearing including attendance on day one of the hearing, up to $250 for other court attendances other than the hearing of the complaint, and up to $875 for each day of the hearing after day one.
It would appear that the quantum of costs has been decided in favour of those who follow the Justices Act view because the 2012 Act, in adopting the Justices Act generally, does not incorporate Chapter 17A of the UCPR which deals with costs.
There has been a repeat of the previous clauses relating to closed court and the restriction on publication.However, there is a slight change to “publish” so that the legislation is no longer identical to s.121 of the Family Law Act, as the explanatory notes state:
“Publish is defined in clause 159(3) in terms of publishing ‘to the public’. This is wider than the current meaning of publish in section 82 of the Domestic and Family Violence Protection Act 1989, which also refers to ‘a section of the public’. This means that the Bill does not need to specify all of the exemptions that are referred to in the current provision. The proposed definition of publish will not include a person who is required to copy or forward documents to another person where this is undertaken in the course of representing or assisting a person who is involved in proceedings.
The exceptions, set out in clause 159(2), include: circumstances where the court orders publication; notices which are displayed in court; publication of genuine research or in a recognised series of law reports, where individuals are not able to be identified; or where consent has been obtained by the individuals to whom the information relates.
It is considered that these provisions effectively balance the need to protect individuals from the publication of highly sensitive and personal information and the need to facilitate the openness and accountability of court processes. Court processes are still subject to scrutiny, through publication in recognised law reports and genuine research, and also through the appeal provisions in part 5, division 5 of the Bill. Further, a court has the discretion to open a court in appropriate circumstances.”
There is a general prohibition on supplying of copies of the court documents.
Appeals are required to be filed within 28 days. An appeal must be started on the evidence of proceedings before the court that made the decision being appealed, however the appellant court may order the appeal be heard afresh, in whole or part.
Registration of interstate orders
These can still be registered.
Offence of breach of order
Penalties have been beefed up. Under the 1989 Act the maximum penalty is $4,000 or one year’s imprisonment but if the respondent has previously been convicted on at least two different occasions of an offence under that section within the last three years the maximum penalty is two years.
The penalty will now be $6,000 or two years imprisonment but if an offence has been committed in the last five years the maximum penalty is $12,000 or three years imprisonment.
The new section 180 is significant. It provides:
“180 Aggrieved or named person not guilty of offence
For the purposes of the Criminal Code, section 7, an aggrieved or other person named in a domestic violence order, police protection notice or release conditions, does not aid, abet, counsel or procure the commission of an offence against section 177, 178 or 179, and is not punishable as a principal offender, because the person encourages, permits or
authorises conduct by the respondent that contravenes the domestic violence order, police protection notice or release conditions.”
The purpose of section 180 is clear. It is designed to ensure that aggrieveds are not charged as parties to an offence.
Example of section 180:
Wilma has obtained a protection order against Fred. The terms of the protection order include a “no contact” clause. Wilma phones Fred and leaves a message on his voicemail asking him to phone her back. He does so. Fred commits a breach of the protection order. Wilma does not, even though she “encouraged, permitted or authorised conduct” by Fred “that contravenes the domestic violence order”.
Offences under the 1989 Act, as summary offences, had to be prosecuted within one year of the offence being committed. The 2012 Act says that the proceedings must be started within a year after the offence is committed or “one year after the commission of the offences comes to the complainant’s knowledge, but within two years after the commission of the offence”.
There has been a comprehensive rewrite of what constitutes domestic violence. The definitions under the Family Law Act and in the 2012 Act are complementary.
The changes to the Family Law Act swing the balance much more in favour of protection from violence.
As Minister Struthers indicated, the 2012 Act is a substantial rewrite of the 1989 Act but it maintains the overall framework of the original legislation. It continues to provide a civil response to acts of domestic violence. The 2012 Act clearly emphasises that police have a duty to also exercise their power to investigate any possible offences and if necessary charge. It remains to be seen as to whether police will take up the challenge consistently.
It will, in my view, be considerably easier to have action taken against perpetrators of violence, easier to obtain ouster orders and considerably easier to obtain temporary protection orders. It is likely that police will issue notices on the scene commonly when they do not take the respondent into custody. We should expect that orders will now be much easier to obtain naming children.
Sending perpetrators to perpetrator courses is certainly a good step, provided the courses are of adequate quality and there is adequate funding.
It remains to be seen as to whether magistrates will decline to make mutual orders given the stated purpose of the Act that “the person who is most in need of protection should be identified”.
Harrington Family Lawyers
12 March 2012
Phone: 07 3221 9544
Fax: 07 3221 9969