Obtaining a protection order in Queensland: grasping the nettle
Earlier this week, I delivered a paper for Australia’s CEO Challenge as part of Queensland’s Domestic and Family Violence Prevention Month. It was entitled: Grasping the nettle: obtaining a protection order.
Here is the paper:
GRASPING THE NETTLE: OBTAINING A PROTECTION ORDER
Presentation to Australia’s CEO Challenge
4 May, 2010
1. Introduction
[1] I want to acknowledge the traditional owners of this land, the Turrbal people. One of the realities about any discussion of domestic violence in Queensland and Australia is that domestic violence rates and the nature of that violence, is much worse in Aboriginal relationships than those in relationships of the broader community.
2. Summary
[2] If there are only two things you learn today, make sure it’s these:
• Think of obtaining protection when considering a risk assessment and as part of a safety plan for your client; and
• If protection orders are contested, it may be no walk in the park to obtain an order. If the applicant does not prove the case, no protection order is made.
3. What is domestic violence?
[3] I won’t go into too much theory today, and there are many definitions of domestic or family violence. However, fairly obviously there are two criteria:
• Domestic
• Violence
[4] In general terms, domestic violence occurs in a relationship of a domestic nature, typically husband and wife or de facto partners, whereas family violence occurs in a broader family relationship, eg parent to child.
[5] The mistake that is often made is to fail to recognise abuse that is not physical, which can clearly be identified as domestic violence.
[6] A useful definition, as good as any out there, and one we need to focus on is that in section 11 of the Domestic and Family Protection Act 1989 :
“(1) Domestic violence is any of the following acts that a person commits against another person if a domestic relationship exists between the 2 persons–
(a) wilful injury;
(b) wilful damage to the other person’s property;
Example of paragraph (b)–
wilfully injuring a defacto’s pet
(c) intimidation or harassment of the other person;
Examples of paragraph (c)–
1 following an estranged spouse when the spouse is out in public, either by car or on foot
2 positioning oneself outside a relative’s residence or place of work
3 repeatedly telephoning an ex-boyfriend at home or work without consent (whether during the day or night)
4 regularly threatening an aged parent with the withdrawal of informal care if the parent does not sign over the parent’s fortnightly pension cheque
(d) indecent behaviour to the other person without consent;
(e) a threat to commit an act mentioned in paragraphs (a) to (d).
(2) The person committing the domestic violence need not personally commit the act or threaten to commit it.”
[7] I’ll come back to these elements later. However, you can see that non-violent behaviour such as harassment can constitute domestic violence.
4. History of the movement
[8] Society’s response to domestic violence arose from the inexorable rise of the women’s movement. That movement recognised and recognises that women needed to be equal with men, and that part of the problem of men’s domination of women was men’s violence to women. From this wellspring of the women’s movement, women’s and children’s shelters were founded. The first in the world, from recollection, was founded in 1972 in England. Australia was not far behind, in 1974, with the first refuge being founded in Tasmania by, amongst others Jocelyn Newman.
[9] In Queensland, I am happy to be corrected, but I understand the first women’s shelter was Women’s House , which was founded in 1975, for several years as an unfunded service.
5. Society’s response to domestic violence
[10] Aside from funding more police and women and children’s shelters, society’s prime response to domestic violence has been the ability to obtain civil protection orders.
6. Theory of domestic violence
[11] Once the sheer scale of domestic violence became clear, feminist theorists tried to work out what was happening and why.
[12] Here is a useful summary of some of the theories:
“The first theory developed in the United States was that men who battered women were mentally ill and that women who remained in violent relationships were also mentally ill. This theory proved to be wrong. The number of relationships that involved violence was much greater than original theorists guessed and psychological tests did not support the theory that violence was caused by mental illness. In fact, many batterers and their victims tested “normal” under psychological tests.
Another theory developed that men battered because they learned this behavior in their families. Although there is a statistical relationship between boys who witness their fathers battering their mothers (they are seven times more likely to batter their own wives), there is no significant statistical relationship between girls who witness battering and those who later become victims. Further, many men who witnessed violence as children do not abuse their partners as adults.
A third theory was that women suffered from a “learned helplessness” as a result of repeated battering, which prevented them from resisting the violence or leaving the relationship. This theory does not address the economic, social, and familial reasons why a woman might stay in the relationship; it is also inconsistent with the experiences of many women who actively attempt to secure their safety. Research indicates that battered women resist the abuse in many ways and engage in a variety of survival or coping strategies.
Yet a fourth theory was that batterers follow a “cycle of violence” with intermittent violent and repentant episodes. The “cycle of violence” theory did not conform to many battered women’s experiences. Many women reported that their partners never repented in their violent relationships, and that violence was not cyclical but rather a constant presence in their lives.
These theories evolved into the current understanding of why violence against women happens. This understanding of how and why men batter was developed though many years of interviews with victims and batterers. According to this model, batterers use abusive and threatening behaviors to exert and maintain control and power over their victims.”
[13] There are some who still maintain that all domestic violence is that by men to women, and that all is based on the patriarchal model. It must be remembered when acting for clients that theories are well and good, and they might apply in the case of the client, but they are theories. What is happening to your client is happening in the here and now. It’s real. If there is a difference between the theory and the reality, the theory must give way.
[14] Unfortunately, the patriarchal model is a one size fits all model which does not reflect the growing realisation of when domestic violence occurs in a relationship:
• By a man to a woman
• By a woman to a man
• By a woman to another woman in a lesbian relationship
• By a man to another man in a gay relationship
• By a man or woman to a transgendered partner
[15] Unfortunately some women do commit violence to their male partners. Unfortunately, same sex domestic violence is a reality.
[16] The clear feature in all of these relationships is that there is the use of physical and/or sexual violence (or other forms of abuse), which is used as a tool by one party as a form of power to control the other.
[17] If we go back to the list contained in section 11 of the Domestic and Family Violence Protection Act, we see the shopping list of controlling behaviour:
• Wilful injury
• Wilful damage
• Harassment or intimidation
• Indecent behaviour to the other without consent
• A threat to commit any of these
• Using someone else as an agent to do these things
7. Risk assessment and safety planning
[18] It must be remembered at all times that the obtaining of a protection order, while the prime legal means of obtaining protection, is not the be all and end all of ending domestic violence, and that the prime focus must at all times be on the safety of the client and any children. To properly protect survivors of violence:
• Obtaining a protection is not an end in itself.
• Sometimes obtaining a protection order increases a client’s risk, not decreases it.
• If a protection order is to be sought, it must be part of a holistic process- to do in isolation can place the client and any children at greater risk, by giving the client a false sense of security.
• It is essential to undertake a safety plan with the client.
• But a safety plan cannot be properly undertaken without undertaking a risk assessment. If you don’t know the risk, how can you plan for safety?
[19] I’ve included in the handouts the risk assessment and safety plans that I use with my clients. Feel free to use them as you wish. Electronic copies are also available.
[20] While talking about safety and risk:
1. Safety first, safety always. Always think in the paradigm of safety.
2. Check your own safety. Violent, controlling people don’t like being challenged and may try to stalk you or be violent to you.
8. The legal framework
[21] The starting point in considering any matter under the Domestic and Family Violence Protection Act 1999 is the report of the Queensland Domestic Violence Taskforce “Beyond these Walls” (1988). This was the report that led to the enactment of the then Domestic Violence (Family Protection) Act 1989 which is, in essence, the basis of the current legislation. The report was clear that there needed to be civil protection orders, as other parts of our legal system, such as the use of the Criminal Code, were failing women.
[22] The report writers looked for inspiration as to what to do both interstate and overseas, especially in the United States.
[23] It is useful here to mention what the purpose is of a statute like the Domestic and Family Violence Protection Act 1989:
“The purpose of the domestic abuse statute is to protect and “aid victims of domestic abuse by providing an immediate and effective” remedy. The statute provides for a wide variety and scope of available remedies designed to separate the parties and avoid future abuse. Thus, the primary goals of the statute are preventive, protective and remedial, not punitive. The legislature did not design the statute as punishment for past conduct; it was instead intended to prevent further harm to the victim.”
[24] The purpose of our Act is stated in its long title:
“An Act to provide for protection to a person against violence committed or threatened by someone else if a spousal, intimate personal, family or informal care relationship exists between the persons”.
9. Obtaining a protection order
[25] There is a different test for obtaining a final as opposed to a temporary protection order. Making a protection order of any kind is a “serious step to take” as McGill DCJ stated in DMO v RPD :
“Such an order may, for example, prohibit a person from entering, attempting to enter, or remaining in premises even though the person owns or has another legal or equitable interest in the premises, or even from approaching within a stated distance of the premises: s 25(3)(b). It can prevent a person from approaching within a stated distance of a named person, or from contacting a named person, or from locating or attempting to locate that person: s 25(3)(c), (d), (e). In addition, it can require a respondent to return property to the aggrieved, or allow an aggrieved to recover property: s 25(4). The order has serious consequences for a person who holds or wishes to hold a licence under the Weapons Act. It may prohibit a person from possessing a thing, possession of which would otherwise be lawful: s 26. A breach of a protection order is a criminal offence if the respondent was present when the order was made, or was served with a copy of the order, or was told about it by a police officer, and is potentially punishable by a term of imprisonment; it is not uncommon for terms of imprisonment to be imposed. In these circumstances making such an order is plainly a serious matter, so that one would expect the rules of procedural fairness to apply.”
9.1. Obtaining a final protection order
[26] Three things need to be shown:
1. There is the right type of relationship.
2. Acts of domestic violence have happened.
3. Further acts of domestic violence are likely.
[27] Domestic violence towards a named person is not a basis for obtaining a protection order. However, if there are named persons to be added then associated domestic violence must have been either committed or is likely to be committed against those named persons . The test is therefore different to that for showing the basis of an order.
9.2 Step 1: Right type of relationship
[28] The relationship has to be a “domestic relationship”. It needs to be:
• Spousal relationship
• Intimate personal relationship
• Family relationship
• Informal care relationship
[29] If the parties do not have the right type of relationship, then a protection order, of any kind, cannot be made.
Example A
Mary married Bob. They later divorced. Mary married John. Bob has been abusive to John. John asks for a protection order against Bob. He cannot obtain one as they do not have the right type of relationship.
9.3 Spousal relationship
[30] This is defined in section 12 as:
• Between spouses! To see the definition of spouse, the definition section of the Act, section 3 says to go to the dictionary. The dictionary says to go to section 12(2) and (3). Essentially a spousal relationship is either for married couples or de facto couples, the latter including both opposite and same sex couples. Section 32DA of the Acts Interpretation Act 1954 defines “de facto couple” using the key concept of genuine domestic basis:
“ (1) In an Act, a reference to a de facto partner is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.
(2) In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances–
(a) the nature and extent of their common residence;
(b) the length of their relationship;
(c) whether or not a sexual relationship exists or existed;
(d) the degree of financial dependence or interdependence, and any arrangement for financial support;
(e) their ownership, use and acquisition of property;
(f) the degree of mutual commitment to a shared life, including the care and support of each other;
(g) the care and support of children;
(h) the performance of household tasks;
(i) the reputation and public aspects of their relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether 2 persons are living together as a couple on a genuine domestic basis.
(4) Two persons are not to be regarded as living together as a couple on a genuine domestic basis only because they have a common residence.
(5) For subsection (1)–
(a) the gender of the persons is not relevant; and
(b) a person is related by family to another person if the person and the other person would be within a prohibited relationship within the meaning of the Marriage Act 1961 (Cwlth), section 23B, if they were parties to a marriage to which that section applies.
(6) In an Act enacted before the commencement of this section, a reference to a spouse includes a reference to a de facto partner as defined in this section unless the Act expressly provides to the contrary.”
• Between former spouses
• Between the biological parents of a child. The use of “biological” is important. It would include those, such as sperm donors, who would not be recognised in law as parents.
9.4 Intimate Personal Relationship
[31] When the last major review of the Act was undertaken in 2002, it was recognised that dating violence needed to be tackled, hence this category. However, a dating relationship is not required for this category. Merely because the parties have dated does not mean that they have an intimate personal relationship. Nor do they need to have been intimate. The concept applies whether the parties are the opposite or the same sex.
[32] The key concept is that of enmeshment. “Enmeshment” is not defined in the Act. The Macquarie Dictionary, 3rd ed. defines “enmesh” as:
“verb (t) to catch, as in a net; entangle. Also: immesh, inmesh. – enmeshment, n.”
[33] Section 12A provides:
“(1) An intimate personal 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.
(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.”
9.5 Family relationship
[34] This is defined in section 12B .
[35] Some key concepts:
• Relative is not limited by the ordinary concepts. It can have wider application, for example in ATSI relationships.
• However, for most people, an in-law may not be an in-law if the “relative” is a family member of the person’s de facto or ex-de facto partner.
• Children under 18 cannot obtain a protection order against their parents nor vice versa.
Section 12B enables an in-law through a de facto relationship to be considered to be a “relative”. However, I have been told by other lawyers that magistrates are generally only applying the concept of “relative’ when there is a marriage, as opposed to a de facto relationship.
History
[36] This section was inserted in the last major review to include reference to senior abuse.
[37] Section 12B provides:
“(1) A family relationship exists between 2 persons if 1 of them is 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.
Example of subsection (2)–
A person’s spouse, child (including an individual 18 years or over), stepchild, parent, step-parent, sibling, grandparent, aunt, nephew, cousin, half-brother, mother-in-law or aunt-in-law is the person’s relative.
(3) For deciding if someone is related 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 relevant 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 relevant person regards or regarded as a relative;
(b) a person who regards or regarded himself or herself as a relative of the relevant person.
Examples of people who may have a wider concept of a relative–
1 Aboriginal people
2 Torres Strait Islanders
3 members of certain communities with non-English speaking backgrounds
4 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.”
9.6 Informal care relationship
[38] Key concepts:
• A carer providing personal care activity
• The care is required due to disability, illness or impairment
• In general terms, no fee is paid.
[39] This concept was inserted during the last major review of the Act largely due to lobbying of what is now the Queensland Association of Healthy Communities , due to concerns expressed by HIV/AIDS patients of being abused by their volunteer carers. It also fitted neatly with senior abuse.
[40] This relationship is defined in section 12C :
“(1) An informal care relationship exists between 2 persons if a person is or was dependent on another person (a carer) who helps the person in an activity of daily living (personal care activity).
Examples of personal care activities a carer may perform–
1 dressing or other personal grooming of the person
2 preparing the person’s meals or helping the person with eating meals
3 shopping for the person’s groceries
4 telephoning a specialist to make a medical appointment for the person
(2) The personal care activity must be required, or have been required, because of a disability, illness or impairment relating to the person.
(3) A relationship in which the personal care activity is or was provided under an arrangement the person entered into with someone other than the carer is not an informal care relationship, whether or not a fee is or was paid for the care.
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 if the nurse visits under an arrangement between the person and a community based in-home care entity.
(4) If the person entered into an arrangement with the carer and a fee is or was paid, or is to be paid, to or at the discretion of the carer under the arrangement for the personal care activity, the relationship existing between the persons is not an informal care relationship unless it is alleged that the circumstances relating to the arrangement or fee include an act mentioned in section 11(1)(a) to (e).
Example for subsection (4)–
The relationship that exists between a person and the person’s carer is an informal care relationship if the carer demanded the proceeds of the person’s pension or superannuation cheque and threatened to injure the person unless the proceeds were paid.
(5) However, an informal care relationship can not exist between a child and a parent of the child.
(6) In this section–
fee does not include–
(a) a pension or allowance in the carer’s own name from the Commonwealth Government for providing care to a person; or
(b) an amount of money paid to a carer for goods purchased for the person that does not exceed the purchase price of the goods.
Example of paragraph (b)–
A friend of a person who has had a stroke may call on the person at the person’s home every second day and bring fresh milk and bread and be given the price of the items.
parent, of a child, see Child Protection Act 1999, section 11.”
9.7 Overlap
[41] It is possible for various relationships to overlap. The key concept is that if you have a spousal relationship, rely on that. If you are in doubt about a spousal relationship, then also rely on one or more of the other.
Example B
Bill and Catherine dated. They lived together for 2 weeks. Bill has a minor disability. Catherine is an occupational therapist. Catherine has helped Bill, using her skills as an occupational therapist. Sometimes Bill has paid Catherine for her help.
It is unlikely that Bill and Catherine would have been in a spousal relationship, nor informal care relationship, but it appears clearly that they were enmeshed, and would have been in an intimate personal relationship.
9.8 Step 2: acts of domestic violence
[42] To recap:
• Wilful injury
• Wilful damage
• Harassment or intimidation
• Indecent behaviour to the other person without consent
• A threat to commit any of these
• Using someone else as an agent to do these things
9.9 Wilful injury
[43] Key concepts:
• Wilful
• Injury
[44] The fact that a party might have been hit does not of itself mean that there has been “wilful injury”. If an aggrieved has been hurt purely by accident, then the injury is not wilful. If an aggrieved is hit by the respondent, but is not hurt, then there is no injury.
[45] It is clear that this behaviour may fall within other categories. It may be:
• Harassment
• Intimidation
• Indecent act without consent
• Threat to injure
[46] Although “wilful” is not defined in the Act, its concept is well known to lawyers and magistrates. The Court of Criminal Appeal stated in 1980 in relation to wilful damage that it involved:
“That the accused deliberately did an act (that is, that it was a willed act) aware at the time he did it, that the result charged in the indictment was a likely consequence of his act, and that he recklessly did the act regardless of the risk; where applicable it embraces actual intent.”
9.10 Wilful damage
[47] Key concepts:
• Wilful
• Damage
[48] If you don’t have damage, then this cannot apply. A phone that was smashed by being thrown across the room or was deliberately dropped into a pool are both examples of wilful damage. A phone that was damaged by being dropped by accident into a pool, unless the damage can be shown to be a “likely consequence” is not wilful damage.
9.11 Harassment
[49] There is no definition in the Act. This concept involves ordinary and garden concepts of harassment. The Macquarie Dictionary 3rd ed. defines “harass” as:
“1. To trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid. 2. to disturb persistently; torment, as with ctroubles, cares, etc.”
[50] Couples yell at each other from time to time. This may not constitute domestic violence. Contact, of itself, may or may not amount to harassment or intimidation.
[51] If an aggrieved is seen as overly sensitive then he or she may not be able to prove this ground.
[52] If the sole basis of the application is verbal abuse or related financial abuse, it may be extremely difficult to obtain an order, as magistrates can be quite sceptical of allegations about non-physical violence by itself.
9.12 Intimidation
[53] This is not defined. Again, the garden or dictionary definitions are to be used. Irwin DCJ held last year :
“[Citing an earlier case of Bottom v Rogers]:
‘Intimidation refers to a process where the person is made fearful or overawed, particularly with a view to influencing that person’s conduct or behaviour.’
I add that my interpretation of this is that the person who was alleged to have engaged in the intimidation, or harassment for that matter, must have engaged in the conduct for the purpose of influencing the other person’s behaviour. I refer to the examples in the Act which all involve an element of deliberateness and the decision of Dowse -v- Gorringe . There can be a single incident of conduct which amounts to intimidation. Regard must be had to the subjective state of mind of the person alleged to have been intimated.
As was said in Dowse -v- Gorringe, something which does not in fact intimidate could not amount to intimidation. Harassment, on the other hand, involves a repeated or persistent form of conduct which is annoying or distressing, rather than something that would incite fear. In either case, the matter needs to be of some significance to qualify as domestic violence , bearing in mind the other elements of the definition and the examples that are given for paragraph (c) of section 11(1) of the Act.”
[53A] The Macquarie 3rd ed. defines “intimidate” as:
“1. to make timid, or to inspire with fear; overawe; cow 2. to force into or to deter from some action by inducing fear: to intimidate a voter.”
[53B] Clare SC DCJ stated in M v Gray (2010) :
“Intimidation imports some form of deliberate pressure from the person intimidating the victim. Intimidation does not need to be overt. A superficially kind approach may still import menace. Each case must be assessed on its own circumstances. No doubt there are many cases where even a single call would amount to intimidation.”
Example C
Bob and Mary are married. One night Bob holds a shotgun to himself in front of Mary saying that he will kill himself. Because Bob has not threatened Mary, and has only threatened himself, he has not committed an act of intimidation. However, the act would constitute harassment even though it happened only once.
9.13 Indecent behaviour to the other person without consent
[54] Key concept: without consent.
[55] I have lost count of the number of matters where the woman has not raised in the protection order application that she was sexually assaulted because she or the person interviewing her felt uncomfortable talking about the issue. In the process her credibility became even more the central issue, which could harm her both in these proceedings but also those in the Family or Federal Magistrates Courts. This concept does not need actual touching. It could also cover behaviour that might be harassment, for example:
• taking an indecent photograph of the other without consent;
• posting that photo online.
9.14 Threat to commit act
[56] A general threat is not enough. It must be a threat to do something, i.e. to commit one of the forms of domestic violence.
Example D
Andrew and Gwen are in a de facto relationship. Andrew insists every day that Gwen wear only that lingerie that he has laid out on the bed. She is not allowed to wear any other. That behaviour would constitute harassment.
One morning they had an argument. Gwen refused to wear the lingerie, and told Andrew that. He was unhappy about this, started yelling at her. He yelled: “If you don’t put that underwear on, I’m going to shove you outside!” Gwen said: “Don’t you dare!” Andrew grabbed Gwen out of the shower and carried her out the front door, still naked.
A week later, Andrew says that if Gwen does not do what he tells her, he will shove her outside naked again.
Andrew’s behaviour on the morning may have constituted harassment or intimidation, and a threat to carry out an act of domestic violence (ie harassment, intimidation, indecent behaviour without consent or wilful injury- the threat being to “shove you outside”), but it would also have been an indecent act to Gwen’s without her consent (carrying her outside when she was naked).
Andrew’s behaviour a week later constituted a threat, which was likely to be carried out as he had done just that the week before.
9.14 Step 3: Further acts are likely/threat likely to be carried out
[57] The same types of acts are not required to be proved again. It doesn’t have to be proved, for example, that because the domestic violence that occurred was wilful injury that the future acts of domestic violence must be wilful injury. What is required to be proved is that, on the balance of probabilities, that there is a real or serious risk of further acts of domestic violence of some kind.
[58] In Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979)
There are long discussions by each of Bowen CJ and Deane J as to what “likely” means. Bowen CJ said :-
“The word “likely” is one which has various shades of meaning. It may mean “probable” in the sense of “more probable than not” – more than a fifty per cent chance”. It may mean “material risk” as seen by a reasonable man “such as might happen”. It may mean “some possibility” – more than a remote or bare chance or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified.”
[59] Deane J said :
“The word “likely” can, in some context, mean “probably” in the sense in which that word is commonly used by lawyers and laymen, that is to say, more likely than not or more than a fifty per cent chance … It can also, in an appropriate context, refer to a real or not remote chance or possibility regardless of whether it is less or more than fifty per cent. When used with the latter meaning in a phrase which is descriptive of conduct, the word is equivalent to “prone”, “with a propensity” or “liable”. When so used, it is sometimes equated with the concept of foreseeability in the law of negligence … Thus, if I fire a rifle through drawn curtains into a quiet lane in the country village, it is not likely, in the sense of more likely than not or an odds on chance, that I will injure anyone. It would, however, be difficult to deny that there was a real chance or possibility (or likelihood in that sense) that an occasional passerby would be wounded by the bullet. Plainly, the act of firing a rifle through drawn curtains into a lane used by pedestrians would be an act which was, in the circumstances, prone or liable (likely in that sense) to cause injury to a passing pedestrian.”
[60] In Schmidt v Schmidt, McGill DCJ refers to Tillmans Butcheries saying that “likely” can in different contexts carry various meanings.
[61] In McLennan v McLennan [2003], McGill DCJ held :
“ ‘Likely’ in my view does not in the statute mean more probable than not, but it must at least, involve a real, not remote likelihood, something more probable than a mere chance or risk. The magistrate has also expressed himself in terms of the possibility of the recurrence of the particular domestic violence which had occurred in the past; in my opinion the statute is not so limited, and what has to be established is that the respondent spouse is likely to commit an act, that is any act, of domestic violence in the future. The magistrate ought to have been considering whether the evidence indicated that there was some real, significant likelihood that the respondent would commit an act of domestic violence in the future.”(emphasis added)
[62] The test for threats is slightly different: the test is that the threat is likely to be carried out.
[62A] Don’t assume that just because the parties are still warring about kids and property in the Family Court that this is a basis of showing further acts are likely. In W v D (2008) , for example, a protection order should not have been made as it was found that the relationship between the parties prior to physical separation was poisonous, but there were no acts of domestic violence post- leaving, and further acts were not likely.
9.15 Temporary Orders
[63] Key concepts:
• The test for obtaining a temporary protection order is lower than that of a final order.
• The test for obtaining an ex parte temporary protection order needs to show immediacy of risk to the body of the aggrieved or to his/her property.
[64] Section 39A provides:
“Act of domestic violence necessary before particular temporary protection order is made –
(1) A court may make a temporary protection order against a respondent under this division, other than section 39D, only if it appears to the court, on application for a protection order, that an act of domestic violence has been committed against the aggrieved by the respondent.
(2) A temporary protection order under this division need only be supported by evidence the court considers sufficient and appropriate having regard to the temporary nature of the order.” (emphasis added)
[65] Therefore the burden of proof to obtain a temporary protection order is less than for a final protection order as it is not necessary to show that further acts of domestic violence are likely or if threats if a threat is likely to be carried out (as would otherwise be required under section 20(1).
[66] At the time of seeking a temporary order, if there is an issue involving contact with children, consideration should be given as to whether section 68S of the Family Law Act ought apply.
[67] The ability to obtain urgent orders is contained under section 39D on an ex parte basis if, in section 39D(c) it appears to the court:
(i) “that the aggrieved or a named person is in danger of personal injury; or
(ii) property of the aggrieved or a named person is in danger of substantial damage.” (emphasis added)
[68] Temporary protection orders may be refused to a cross applicant under section 39E. The key concept is contained in section 39E(1)(c) where the cross application must be served at least one business day before the day of the hearing of the original application or may well be adjourned : section 39E(2). Magistrates have different views of what constitutes one business day. Some are of the view that it is one clear day. If the hearing were on the Monday, then this would be the previous Thursday.
[69] Magistrates have differing views as to what is a “hearing” in this section- some view it as only the trial, whereas others include any mention. This can have a significant difference.
10 Conditions
[70] Assume that you have persuaded the Magistrate to make an order, the key to the effectiveness to that order will be its terms.
[71] Key concepts:
• The magistrate can make orders of unlimited scope and power.
• The terms of any special conditions must be both “necessary” and “desirable”.
[72] Section 17 provides :
“What are the conditions of a domestic violence order?
If a court makes a domestic violence order:
(a) the respondent must be of good behaviour and must not commit acts of domestic violence or associated domestic violence; and
(b) the respondent must comply with any other conditions imposed by the court and stated in the order.”
[73] Section 22 provides :
“Protection order must include standard condition to be of good behaviour etc.
“In making a domestic violence order, the court must impose a condition that the respondent :
(a) be of good behaviour towards the aggrieved and not commit domestic violence; and
(b) be of good behaviour towards a named person in the order and not commit an act of associated domestic violence against the person.”
[74] There seems to be a misconception that the orders need to be of a prohibitive nature i.e. to stop people doing things. Whilst this would ordinarily be the case, it is clear, from considering ouster orders later, or for the return of property that conditions may well be of a mandatory nature i.e. require the respondent to do positive things.
11 Other Conditions
[75] Section 25 allows the court to impose other conditions. The key provision is section 25(2):
“When a court makes or varies a domestic violence order, it may also impose conditions on the respondent that the court considers :
(a) necessary in the circumstances; and
(b) desirable in the interests of the aggrieved, any named person and the respondent.” (emphasis added)
[76] The key phrases therefore in the making of any condition other than the standard conditions is whether that condition is “necessary” and “desirable”: cf. Collin v Collin [2004].
[76] There may be circumstances where it is desirable to have a particular condition, but it is not necessary.
[77] It is submitted that in considering the word “necessary”, regard must be had to the purpose of the act namely set out in the long title “an act to provide for protection to a person against violence committed or threatened by someone else if a spousal, intimate, personal, family or informal care relationship exists between the persons”. Reference might also be had to “Beyond these Walls” :
“In recognition of the diverse range of behaviours that are likely to be the subject of applications under the Domestic Violence Family Protection Act it is necessary for the court to have the power to impose such restrictions or prohibitions on a respondent’s behaviour as appear necessary to the court. Without limiting the discretion of a court, we believe protection orders could do all or any of the following [and there is a list of matters that might apply].” (emphasis added)
[78] Section 25(3) sets out examples of conditions that the court may impose. The court can make any order it feels appropriate, provided it is necessary and desirable. Sometimes those appearing in court and magistrates forget this. The potential power contained in section 25 is enormous. This explains part of the reason that magistrates are reluctant to use all of it.
[79] In making any further conditions, section 25(5) provides :-
“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 persons;
(b) the welfare of the child of the aggrieved.”
[80] Section 25(6) provides :-
“The court may also consider:-
(a) the accommodation needs of all persons affected by the proceedings; and
(b) the orders effect on a child of the aggrieved; and
(c) existing orders relating to guardianship or custody of, or access to, a child of the aggrieved.” (emphasis added)
[81] Section 46C provides :
“Court to consider relevant family contact order etc.
(1) Before deciding about making, revoking or varying a domestic violence order, the court must –
(a) consider whether contact between the aggrieved, or between the respondent, and any child of either of those persons is relevant to making, revoking or varying the order; and
(b) having regard to any relevant family contact order, or pending application for a relevant family contact order, of which the court has been informed.
(2) However, a domestic violence order or revocation or variation of an order, is not invalid merely because the court does not comply with sub-section 1.”
[82] There is an obligation upon the applicant to disclose the existence of the family contact order or an application for a family contact order: section 46B. Failure to do so could be fatal to the application for a protection order.
[83] The examples given under section 25(3) for the types of conditions that can be made are:
(a) “prohibiting stated behaviour of the respondent that would constitute an act of domestic violence against the aggrieved or an act of associated domestic violence against a named person; and
(b) prohibiting the respondent from doing all or any of the following in relation to stated premises even though the respondent has a legal or equitable interest in the premises –
(i) remaining at the premises;
(ii) entering or attempting to enter the premises;
(iii) approaching within a stated distance of the premises; and
(c) prohibiting the respondent from approaching, or attempting to approach, the aggrieved or a named person, including stating in the order a distance within which an approach is prohibited; and
(d) prohibiting the respondent from contacting, attempting to contact or asking someone else to contact the aggrieved or a named person, including, for example, if the aggrieved or named person has taken shelter at a refuge; and
(e) prohibiting the respondent from locating, attempting to locate or asking someone else to locate the aggrieved or a named person if the aggrieved’s or named persons’ whereabouts are not known to the respondent; and
(f) prohibiting stated conduct of the respondent towards a child of the aggrieved, including prohibiting the respondent’s presence at or in a place associated with the child.”
[84] Section 25(4) provides :
“In relation to property of the aggrieved, a condition may require the respondent –
(a) to return the property to the aggrieved; or
(b) to allow the aggrieved access to the property; or
(c) to allow the aggrieved to recover the property; or
(d) to do any act necessary or desirable to facilitate action mentioned in paragraphs (a) to (c).”
[85] Section 25(7) provides:
“A condition in an order that prohibits a respondent from asking someone else to contact or to locate an aggrieved or a named person does not prohibit the respondent asking –
(a) someone who is a lawyer to contact the aggrieved or named person; or
(b) someone else, including a lawyer, to locate the aggrieved or named person for a purpose authorised by an Act.” (emphasis added)
[86] The orders that are able to be made are limited only by imagination.
12 Ouster Orders
[87] These are provided under section 25A and can include premises where the parties currently live together: section 25A(2)(a) .
[88] The court must consider allowing the respondent to remove property: section 25A(3)(b) and may of necessity be able to be made ex parte : section 39D.
[89] The court must specify a time for return or removal: section 25(4) and the court must consider the role of police: section 25(5).
[90] It is usually a lot cheaper, quicker and more convenient to obtain an ouster order under this Act than an order for sole use and occupation under the Family Law Act. Some Magistrates are reluctant to exercise the power the hold if they consider that the dispute is really about children or is really about property settlement. It is usually easier to obtain an ouster order if the person seeking it is the sole registered owner of the property. Conversely, it is usually harder to obtain when the person seeking the order is not the registered owner.
Example E
The aggrieved, Francine, resides in Charleville. On separating, the respondent, Johnno, left Charleville and moved to Dalby. Johnno has been stalking the aggrieved including by SMS and mobile phone calls, up to 30 times a day and in order to pester Francine has also contacted repeatedly most of the business owners in Charleville, including hotels, motels, shops and service stations. Johnno makes threats to come to Charleville.
Francine has a standard order. She makes application for variation.
Possible conditions she could apply for:
• prohibiting the respondent from contacting, attempting to contact or asking someone else to contact the aggrieved or any person in Charleville.
• prohibiting the respondent from approaching, attempting to approach, the aggrieved including coming within 100 metres of the aggrieved (this is on the basis the aggrieved might, for example, go to Brisbane for court).
• the respondent not to approach within 10 kilometres of the Charleville post office.
Obviously if a cordon sanitaire is thrown around Charleville and Johnno attends within that zone, then that in itself is a breach of the order for which he can be arrested.
Example F
The husband, Guy had been violent to his wife, Carol. He has a drug problem. Amongst his threats, Guy threatens to have Carol’s car repossessed. The car is owned by Which Bank and leased to XYZ Pty Ltd, of which Guy is sole director and shareholder. There is no family trust. The car is known as Carol’s car – she has been the sole person driving it since it was bought and is her sole means of transport. She drives the kids to and from school in it. Carol uses it to drive to and from work. To have it repossessed would cause her great hardship. What conditions can be obtained regarding the car, if any?
Possible Conditions:
• prohibiting Guy from taking possession or attempting to take possession of the car.
• prohibiting Guy from advising, counselling or procuring any other person, including Which Bank, its servants and agents to take possession of the car.
• requiring Guy to cause XYZ Pty Ltd to make lease payments to Which Bank for the car.
Example G
Steven was sitting in an alcove outside the courtroom, waiting for his trial to continue. He was subject to a bail condition not to contact his former partner or their child. The former partner and the child then sat down opposite him in the alcove. No one else was there. The former partner asked when:
“She would be required in court and [Steven] replied that she should wait until the prosecutor arrived and someone would show her in. Thereafter the police prosecutor arrived and [Steven] left the alcove and walked into the court room.”
Steven was subsequently acquitted of breaching the no-contact clause of his bail.
13 Variation/Revocation
[91] An application for variation of a protection order or a temporary protection order is brought under sections 35 & 51. Subsections 35(1) and (2) provide :
(1) “A court may vary a domestic violence order –
(a) including the conditions imposed by the domestic violence order under Section 25 or 26; or
(b) the period for which the domestic violence order continues in force.
(2) The application for a variation must be made while the domestic violence order is in force.” (emphasis added).
[92] An application for revocation is brought under sections 36 and 51.
[93] By section 51(2) the application may be made by :
“(a) the aggrieved; or
(b) the respondent; or
(c) an authorised person; or
(d) a police officer who reasonably believes that it is for the benefit of the aggrieved and there is sufficient reason for taking the action.”
[94] Service must be effected on the aggrieved or respondent and given to the Commissioner: sections 37, 51(4), 51(4A). This may mean that you double up the efforts of the court which might ordinarily give the documents to the police. There is nothing worse for a person seeking a revocation to have it rejected by the court because of the failure to serve the Commissioner.
[95] Failure to give to the Commissioner may mean that there is no revocation or variation order made: section 37.
[96] Substituted service may apply: section 51(5).
[97] Variation applications can have temporary variations including urgent variations : sections 39D, 39F.
13.1 Variation
[98] Before varying, the court needs to consider the grounds set out in the application for the protection order and findings of the court that made the domestic violence order: s. 35(4).
13.2 Revocation
[99] Key points:
• Before revoking the order the court must be satisfied that the safety of the aggrieved or a named person would not be compromised: s. 36(3).
• Taking into account the express wishes of the aggrieved: s. 36(2)(a).
• The current contact between the aggrieved and the respondent: s. 36(2)(b).
• Any pressure or threat to the aggrieved by the respondent or someone else for the respondent: s. 36(2)(c).
• Any other relevant matter: s. 36(2)(d).
• The court may vary instead to protect the aggrieved or a named person, instead of revoking: s.36(4).
13.3 Restrictions on revocation or variation
[100] Section 17A, which was inserted by the 1999 amendments, provides :
“What happens if circumstances change after domestic violence order is made?
If circumstances change after a domestic violence order is made, a person may, under Section 51, apply for a variation or revocation of the order. Example of change of circumstances –
A temporary protection order is made because of an application by a police officer under Section 54. The aggrieved’s place of residence is stated in the order as premises that the respondent is prohibited, by the order, from approaching within a stated distance of. If the aggrieved changes his or her place of residence, a variation of the temporary protection order may be sought under Section 51.”
[101] This amendment occurred after the decision of Wylie DCJ in Wade v Nolan (1995) QDC (unreported).
13.4 Wade v Nolan
[102] On 6 December 1994, Ms Nolan (the aggrieved) obtained against Mr Wade (the respondent) a protection order. That order was made by consent.
[103] Two weeks later on 20 December 1994, Mr Wade applied for revocation of that order for the reason that “no domestic violence had occurred ….” It was also an application for variation of the existing order.
[104] Three weeks later on 5 January 1995, the aggrieved sought to vary the existing order by adding additional conditions.
[105] Two months later on 14 March 1995, Mr Wade sought a protection order in his favour.
[106] All three applications came on for hearing. Mr Wade was unsuccessful in both of his applications and Ms Nolan was successful in hers. Mr Wade lodged and subsequently withdrew appeals against those three decisions.
[107] One week later, Mr Wade again applied for revocation and variation of the earlier order. On the first mention of that application the Magistrate noted on the file “the applicant desires to revoke an order to which he consented. He also wishes to vary an order to change variations made … on 24.3.95. He admits there was a full hearing on that date. He now wishes to recanvass those issue(sic) …. adjourned to enable issue of res judicata to be fully canvassed.”
[108] The Magistrate hearing this new application considered that an application to revoke made a week after refusal of an earlier application for revocation was misconceived, mischievous and a “technical form of harassment”. He dismissed the application.
[109] He considered that insofar as the application was one for cancellation of certain conditions, it was “just a rehash of matters which have been canvassed previously.”
[110] Not satisfied with that, Mr Wade appealed to the District Court.
[111] Wylie DCJ held :
“It is now too late for the appellant to complain of the absence of any evidentiary basis for the orders of December 6, 1994 and March 24, 1995. Firstly, this is because, the orders not having been set aside on appeal therefrom, they must now be regarded as conclusive determinations of the issues raised by those applications. This would be so even if the appellant had not, in any respect, consented to the whole or any part of those orders. He is bound by the state of affairs established by those earlier orders (estoppel by res judicata) and he is bound by the findings as to the grounds on which those orders were based (issue estoppel). If he were not, the matters involved could be relitigated by himself and the present respondent time and time again. The principles which underlie such estoppels are expressed in Latin maxims : interest rei publicae ut sit finis litium (it is in the public interest that there should be an end to litigation) and nemo debet bis uexari pro edam causa (no one should be harassed twice for the same cause).
I must therefore approach this appeal on the basis that the earlier orders represented a judicial determination of the issues of fact and law and dispose of those issues once and for all and that the appellant cannot raise for redetermination the very same issue. …… this leaves a “respondent spouse” with limited options when a protection order has been made :
(i) await expiration of the order in the meantime complying with its terms;
(ii) when appropriate, apply for a variation or cancellation of a condition;
(iii) when appropriate, apply for revocation of the order.
The Act says nothing as to the circumstances in which application for a variation of a domestic violence order may be made which is relevant to this matter. There are, however, conditions contained in the Act which suggest that there should have been some alteration to the factual circumstances which existed when the order was first made or when it was previously varied …. I can find nothing which demonstrates that an application for variation of any condition of a protection order should be the occasion for a fresh hearing as to the necessity for such condition as if the original hearing had not taken place. When an application for variation of any condition (not being a mandatory standard condition …) the application for variation has to establish that there has been such a change in circumstances as to justify the variation sought … consequently consistently with [the object of the Act], I hold that, before a protection order is revoked, there should be evidence of such an improvement in the conduct of the person subject to the order that the court hearing the application is satisfied that the aggrieved spouse and associated person no longer need the protection ordered by the order.
What I have said in the preceding paragraphs is not intended to affect such circumstances as a giving of consent to revocation or variation or proof of death of the benefited spouse or person so that continuance of protection has become unnecessary.”
[112] His Honour went on to consider that the applications made by Mr Wade were that –
“what they seek to litigate are the same issues going to revocation of the original protection order, to variation or cancellation of the discretionary conditions of the original order, and of the need to protect associated persons. I …. am satisfied that nothing was said to suggest that a new and different issue was being raised by the appellant’s latest applications.”
“It is no answer for the appellant to refer to the bare words of s.51 of the Act which authorised the respondent spouse to apply to a Magistrates Court for revocation of the domestic violence order or for a variation of the conditions of such an order. That “right” requires that the application will be in appropriate form as to its setting out and contents and, on filing, will be served in accordance with the requirement of the Act. But that is not the end of the matter. Clear words must appear in an Act of parliament if it is to be held to abrogate ordinary rules of law. The principles to which I referred …. above are part of the common law. I consider that there is nothing in the Act which works to deny operation to those principles when an application has been made for revocation or variation of a protection order which is in force. Indeed s.84(1) reinforces in my view, those principles because it provides that, in any proceeding with a view to giving effect to any provision of the Act, a copy of a protection order or a copy of an order varying the prohibitions and restrictions imposed by a protection order shall be evidence and, in the absence of contrary evidence, conclusive evidence of ‘the making of the order and of the matters contained therein’.
“So the stipendiary magistrate had to accept that the order had been made on December 6, 1994 and varied on March 24, 1995 and could not explore the circumstances which led to the making of the order and then its variation.”
[113] Unfortunately, when parliament inserted section 17A it made no specific reference to Wade v Nolan. However, a somewhat different view to Wade v Nolan was taken by McGill DCJ in Schmidt v Schmidt .
[114] This was a matter in which there had been a series of applications and appeals to the District Court. His Honour stated :
“Even if there was a full hearing of an application for revocation, that would not necessarily (or perhaps even usually) involve a reconsideration of the issues which led to the making of the original domestic violence order. Because revocation only operates for the future, the issue on an application to revoke a domestic violence order is not necessarily whether the order was properly made in the first place, but will be rather whether it is necessary or appropriate for it to continue to operate. In other words, is there a continuing risk of domestic violence to the aggrieved spouse, or some continuing need for protection in the form of an order? It would be open on an application for revocation to assert that the domestic violence was not appropriate because there had never been any domestic violence so that the requirement of s.20(1)(a) was never met, although such an application should not be used simply as a mean of reopening or rearguing questions which had been resolved already by a proper hearing.”
[115] At [25] :
“Whether an application for revocation should include a consideration of whether the order should originally have been made will depend on the particular circumstances of the case; for example, if the order was made in the absence of the respondent spouse, and an application was made for revocation as soon as the order came to the attention of that spouse, it would be appropriate to consider whether the order ought ever to have been made. But if there has been a proper hearing on the first occasion, then an application for revocation should not be simply an opportunity to reagitate issues which were properly before the court and properly determined on the first occasion.”
14 Particulars
[116] There is an entitlement to have orders for particulars to be made. I have found that spurious cross applications often lack particularisation. Obtaining particulars of these is often of great assistance to subsequently having these withdrawn or dismissed.
[117] The proceedings are not under the Uniform Civil Procedure Rules but are as if the Justices Act applies: s.38(2). (cf: Edwards v Edwards (1999)) .
[118] There is clear authority for an order for particulars to be made in cases involving summary prosecutions under the Justices Act or its equivalent. The point of making an order for particulars was set out by Douglas J in Hassett v Pauls Ice Cream and Milk Ltd : ex parte Pauls Ice Cream and Milk Ltd :
“It would have been appropriate for the stipendiary magistrate to consider the dismissal of the complaint if he had ordered particulars, and they had not been forthcoming. That is not the case here … It may be that the complainant will not be able to furnish all of the particulars ordered. If that is so the complainant must of course furnish the fullest possible particulars and it will be a question for the magistrate to determine whether the particulars actually furnished are sufficient.”
15 Onus of proof
[119] The onus of proof is on the balance of probabilities: section 9.
[120] The onus is always on the applicant. It is not up to the respondent to show that there is no basis for the making of an order. If the applicant fails to discharge the burden of proof, then no order will be made.
16 Tips for evidence
[121] The rules of evidence may not apply and the magistrate may inform himself or herself as he or she sees fit: section 84 : Grainger v Grainger . There is a basic requirement, however, that in doing so the magistrate applies rules of natural justice .
As McGill DCJ stated in DMO v RPD (2009) :
“Provisions of this nature are familiar, and they do not exclude an obligation to accord procedural fairness. Nor do they have the effect that an order can be made without any proper basis; the position is simply that the formal rules of evidence do not apply, so that it would be open, for example, in an appropriate case to receive material which would ordinarily be excluded as hearsay, or to receive evidence in written form. But there must still be evidence, in the sense of there being some material put before the court which provides a rational basis for arriving at the state of satisfaction contemplated by s 20, and it must be put before a court in a way which gives the opposite party the opportunity to challenge that evidence, and to put the opposite party’s case in relation to the matter.
Ordinarily, therefore, one would expect that the hearing of an application under the Act, where the respondent appeared and contested the matter, would proceed in much the same way as a civil trial; the applicant would give evidence or call evidence, and the applicant’s witnesses would be cross-examined by the respondent, and the respondent would then give or call evidence, and be subject to cross-examination. One would expect that the hearing contemplated by s 48 would be a hearing in the conventional sense. I note that s 39 of the Act contains a mechanism by which a person can be summoned to give evidence as a witness, and the section contemplates that that person will give evidence as a witness at a hearing on oath or affirmation.”
[121A] Children are not normally witnesses: section 81A .
[122] Character witnesses are usually a waste of time as it is unfortunately the case that many perpetrators of domestic violence may appear outwardly to be otherwise respectable members of the community. Character witnesses cannot say what has occurred within the household unless they were actually there.
[123] Summonses should be issued against relevant witnesses or sources of documents. Examples are:
• Commissioner of Police
Crisp or Qprime records of any complaint of domestic violence/criminal complaint;
Tapes of record of interview;
S.93A interview with a child of the parties;
Police notebooks;
Photographs;
Physical evidence collected by police;
Criminal and traffic history of respondent;
QP9’s about each of the convictions.
• Police Officers
They are not in a position to produce documents but can give evidence about such things as:-
• the events of the night in question or earlier occasions;
• the involvement of the respondent and criminal offences including drug matters;
• child abuse or similar investigations undertaken providing oral testimony of the written records.
• Doctors/Hospitals/Psychiatrists
– Medical records of either the aggrieved or the respondent;
– If it is expected that the aggrieved, for reasons of shame, embarrassment or fear told lies to treating doctors about the causes of the injuries, it is much better to have that in the aggrieved’s affidavit and to explain why,
– On one occasion I called an expert from Brisbane about why women presenting to doctors tell lies about the nature of their injuries;
– It is generally much better to call the doctor who documented the injuries than to merely rely on the report. Some Magistrates may exclude a report without it either being sworn to or being subjected to testing under cross-examination. They, quite rightly in my view, feel that the respondent is entitled to natural justice including if necessary cross-examination of the doctor.
– On one occasion in the Federal Magistrates Court I called an expert who said that merely undertaking a perpetrator’s course does not mean that the perpetrator has necessarily changed.
• Department of Communities (Child Safety Services)
– There are many records the Department might hold that might be useful;
– Some magistrates consider that it may be irrelevant and seem as a fishing expedition. However it is often corroborative of assertions by one party or the other as to domestic violence.
• Respondent’s/Aggrieved’s Employer
– This may relate to hours of work in relation to alibi or similar evidence;
– Nature of work undertaken;
– Records about an antidiscrimination claim (for example sexual harassment) involving the respondent.
• Telcos, e.g. Telstra or Optus
– Mobile phone accounts are often wonderful information to verify harassing telephone calls as to the date, number and frequency and or harassing SMS’s even though there is not the practice, as I understand it in Australia, for the telco to keep records of individual SMS calls due to privacy concerns.
17 Use of Affidavits
[124] Some magistrates require affidavits, others do not. The practice varies from court to court and from magistrate to magistrate. Some courts are insistent. Others prefer oral testimonies.
[125] The courts are closed: section 81 , although the aggrieved is entitled to have an adult support person: section 81(3). Obviously such a person ought not be a witness (or not be present in court until after he or she has given evidence).
[126] It has been my experience that the usual rules of cross examination are generally applied as well as the usual rules as to submissions.
[127] Although an order is usually for no greater than for 2 years: s. 34A , it may be for a longer period if there are special reasons: s. 34A (2).
[128] Consideration should be given, in leading evidence and the planning of the case, as to whether there are special reasons justifying an order for a longer period.
18 Weight of various exhibits
[129] The intention of section 84 is to keep the proceedings simple and to allow evidence in that might otherwise fail the hearsay test. Section 84 overcomes the rules as to hearsay. Some exhibits such as photographs, videos, doctor’s records and some of the others that I referred to above corroborate the version of your client.
[130] It is necessary to tie the exhibits to the theory of the case and cross-examination and submissions.
[131] In most cases, magistrates will not allow summonses to issue and be returnable on a date before the hearing although sometimes I’ve been able to have them returnable early. In more recent years, magistrates are becoming more flexible on this point, which has enabled a shortening of the trial and the settling of the matter.
Example H
Frida seeks a protection order against her boyfriend Peter. She asserts that his behaviour occurred largely on one occasion when she says she attended his office and that he yelled and hit her. He then fell on her in a scuffle and all his shirt buttons popped off. He was scratched on his chest during the course of falling.
He cross-applied saying that the girlfriend had attended uninvited and without notice in knowing that she was not welcome and that she had yelled and carried on like a banshee and that she had scratched him and caused the buttons to pop off. When the aggrieved split up from her husband, she also asserted domestic violence. He in turn asserted that she had been violent. His description, but particularly his photographs and videos showed in colour and movement the exact modus operandi as the boyfriend alleged.
Evidently, the videos and photos carried great weight and clearly were admissible.
19 Weight of evidence
[132]Sometimes the most weighty evidence is the un-stated, namely demeanour. Some of the most powerful evidence has been the impression gleaned from the respondent cross examining the aggrieved in the witness box. It doesn’t take much imagination to see how the arguments between the parties developed.
20 Procedure for giving evidence
[133] The usual procedure applies. If an affidavit, the witness confirms the contents of the affidavit. If oral testimony, the usual methods apply although this is always subject to the discretion of the Magistrate who can act in an inquisitorial manner pursuant to section 84.
[134] The applicant goes first. If it is a police application the officer is usually the first witness, before the aggrieved.
[135] The applicant’s case closes and then the respondent’s case opens.
21 Final submissions
[136] Usually this is dealt with in two parts.
Part 1
[137] The issues to be covered are whether or not a protection order should be made. It should cover the elements:
1 Is there the right type of relationship?
2 Has there been an act or a number of acts of domestic violence?
3 Are further acts of domestic violence likely or is a threat likely to be carried out?
[138] In respect of any proposed named persons have there been acts of associated domestic violence or are acts of associated domestic violence towards that named person likely?
Part 2
[139] Submissions should be about:
• any conditions that apply
• if not already covered, should there be any named persons and who?
• special reasons for the order being less than or more than two years.
22 Costs
[140] The respondent may seek costs under section 61 . This contains four elements:
1 Dismissal – therefore a withdrawal of an application even at a very late stage in a trial is not sufficient;
2 Dismissal – because the application was malicious, vexatious, frivolous or deliberately false ;
3 A matter of discretion as to whether or not a costs order is made. Magistrates take into account conduct and financial circumstances, and whether the parties have children. Sometimes a magistrate will be satisfied as to grounds 1 and 2 but refuse the order on this ground.
4 The amount of any costs order is governed in schedule 2 to the Justices Regulations, limited to, in most cases, $1,750. However, I am aware of one recent case where the costs order made was for a much higher amount.
23 Mutual orders
[141] If you have any choice in it- don’t! Cross-applications are still being sought with little evidence, and for the apparent purpose of intimidating the aggrieved. Wherever possible the survivor of violence should not be agreeing to mutual orders, as this immediately puts the person at risk of being seen as bad as the other and the blame of the violence being spread evenly. This mutualisation of violence states to the courts and police that each party is just as bad as the other. Mutual orders can lead to the courts and police not taking action to stop violence when they might otherwise have done so.
[142] Yes, it is cheaper to not to have a run a trial. Yes, it is less risky. But if you have a realistic choice, don’t agree to mutual orders except in cases where your client’s case is so weak that it is unlikely to succeed, or at the leats touch and go whether it will succeed.
24 Undertakings
[143] If the respondent offers an undertaking instead of an order, the usual rule, again, is don’t! Undertakings under the Domestic and Family Violence Protection Act 1989 do not have the effect of orders (unlike undertakings given under the Family Law Act). They cannot be enforced by police. They have no bite.
[144] Undertakings should only be agreed to when:
• There is a real risk that your client would not succeed; and/or
• The violence complained of is low-level;
• It is doubtful whether your client, due to a change in circumstances, is able to prove that further acts of domestic violence are likely.
[145] I have certainly acted for clients who offered undertakings when the alternative was to run a trial, in circumstances where it was likely that they would succeed. By giving the undertaking they saved considerable costs and the trauma of having to give evidence.
25. Don’t forget section 68R
[146] Section 68R is a section of the Family Law Act . It is often unknown or forgotten in domestic violence cases, including by magistrates. It can be very useful in providing safety.
[147] Key points:
• The magistrate must make a temporary or final protection order (including a variation order, including a temporary variation) before the jurisdiction under the Family Law Act is enlivened;
• The magistrate can, at the same time, make an order under the Family Law Act;
• The Family Law Act order lasts for 21 days only;
• The Family Law Act order can only revive, vary, discharge or suspend a previous Family Law Act parenting type order (whether that order is called a parenting order or an injunction);
• When making a temporary protection order, the Magistrate can only temporarily revive, vary or suspend the Family Law Act order.
Example I
A Family Law Act order had been made for Tom to:
• live with his mother, Vicki
• speak to his dad, Joe on the phone every other day, and
• to spend time with Joe, during the school holidays.
Joe lives interstate. Tom spends the holidays with Joe. On his return, Tom immediately tells his mother that he had beaten by his father with a stick. Vicki then telephones Joe, demanding to know an answer. Joe had previously been violent to Vicki. Joe screams at Vicki, making numerous threats to get even with her. Joe then calls Vicki round the clock, including sending a death threat. Joe also threatens to fly to Brisbane to “sort you out, once and for all”. Vicki applies for and obtains a temporary protection order and obtains an order under s.68R of the Family Law Act suspending the Family Law Act order for 21 days. This forestalls Joe’s efforts under the Family Law Act. Ultimately time between Tom and his dad comes to an end.
26. Breaches
[148] Sole responsibility for prosecution of breaches against the Act rests with police. The theory behind this is that a breach of an order is an offence against the State, and therefore it is the State’s responsibility to prosecute.
[149] The problem with this approach is that if police for some reason do not pursue prosecutions with vigour, then the perpetrator of violence might feel encouraged to keep breaching, and will continue to keep offending.
[150] Ways of removing police excuses from prosecuting are:
• Have clear orders. Usually (but see example J), the clearer the order, the more certain the breach, the easier to prosecute, the less excuse there is to prosecute.
• Write to police, setting out what the evidence is, and if necessary take it up the chain of command to ensure action is taken. This may be the station OC, or the station’s domestic violence liaison officer, the local domestic violence liaison officer or the ethical standards command, or the State domestic violence liaison officer.
• If necessary create a brief for police, so that the evidence is given to them on a platter.
• If there is an allegation about telephone calls, or conversations, record the calls and conversations. However, this has to be done carefully to avoid committing offences, and anyone in this position ought to consider it carefully to avoid being thought ill of in the Family or Federal Magistrates Courts.
• Just keep being persistent. The more persistent you are, the more likely police will do something.
[151] However, not everything works. The whole point of seeking a prosecution (and in obtaining an order) is to restrain a person from engaging in anti-social behaviour. Different methods should be chosen in different cases that may have the effect of stopping the violence. See example K.
[152] Just keep trying.
Example J
Maggie obtained a temporary protection order against Dennis. Dennis had engaged in stalking behaviour against Maggie, including sending her repeated harassing emails and notes. Once the temporary protection order was made, Dennis’ behaviour changed to sending the same types of notes, often every other day, but instead to Maggie’s solicitors.
A final protection order was obtained against Dennis. A condition was that Dennis was not to write to Maggie’s solicitors except if he engaged solicitors and they wrote, or if it was required for litigation, or it was not greater than once every 7 days.
A week later, Dennis wrote to Maggie’s solicitors, and continued to do so about every 2, 3 or 4 days for some weeks. There was no litigation on foot. It was a clear breach of a clearly worded order. As of a month ago (over a year after police were supplied with a statement by Maggie’s solicitor together with a copy of all of the offending emails, and a written explanation about how it was a breach), police had still not prosecuted, apparently in the belief that there was no breach!
Example K
Michelle obtained a final protection order against Rory. Rory started stalking Michelle, following her at the local train station and shopping centre. Michelle’s vegetable patch was mysteriously damaged one night. She would be followed down the street by Rory.
Police eventually brought two charges against Rory. He was not charged for the many other breaches he had committed. Rory felt so comfortable about his lot that he brought an application for a protection order against Michelle, and called the police officers who had charged him as character witnesses!
His behaviour towards Michelle continued.
On the first day of trial, Rory was subjected to two hours of extremely torrid cross-examination. The trial was adjourned for 3 months. Rory’s behaviour ceased the day following the first day of trial. The only thing that appeared to have changed was that cross-examination and scrutiny in court. Three months later Rory failed in his application. He had not resumed his ways even though the police prosecution had not yet been finalised.
27. Credibility and the Family Court
[153] You have one chance to assist your clients. They have one chance to apply for a protection order. It sounds obvious, but please oh please do not forget these things:
1 A client’s credibility is lost but once. That once can be devastating to the client and can have a huge impact for the safety of the client and the client’s children.
2 When an application for a protection order is filled out, it should be as detailed as possible about the history of domestic violence. If there ain’t no detail, there ain’t no order the magistrate can make. There is no use, a client later alleging in the Federal Magistrates Court that she had been the subject of vicious sexual assaults from her former partner, but never alleging those in her application for a protection order. Her failure to spell out that information in the protection order application will be used against her in the other proceedings.
3 The application for protection order should be completely truthful. It will be assumed that the applicant knew that it had to be truthful, in its entirety. If it is later exposed as being full of lies, or even gilding the lily, that fact will, sooner or later rebound on the applicant. If there are other documents around that will show the lies of the client, the other side will if they are half competent find those documents and use them against the client.
4 The application for a protection order is a document. It may have to be disclosed in other court proceedings. In any case it is capable of being copied and provided to a court for those court proceedings. If there are inconsistencies between what your client says in that document and in another document, you can be guaranteed that it will be used against him or her.
5 Ensure that the history of domestic violence set out in the application for protection order is cogent and legible.
6 Do not use the application for a protection order process for any ulterior process. Assume that every application for a protection order is one that may be going to trial, and that you have to have enough evidence to succeed at trial. Once in a court environment, this focus is essential. Domestic violence trials commonly go ½ a day to a day at a time and not infrequently 2-3 days, and have gone up to 7 days. If you are focused that your client’s application may end up at trial, and focus your client’s efforts accordingly, you will have done your client, and the administration of justice, a great service.
