The Domestic and Family Violence Protection Act 2012 (“Act”) comes into force in Queensland on 17 September, and brings many welcome changes to existing domestic and family violence laws.
The key features of the Act include:
1. a new broader definition of family violence;
2. a change in requirements that need to be satisfied for a Court to make a
Protection Order;
3. guidelines for naming children of protection orders
4. broader police powers;
5. stronger penalties; and
6. provisions for witnesses.
1. New definition of domestic violence
The new definition of domestic violence is broader, and includes behaviour that is physically, sexually, emotionally, psychologically, and economically abusive. It further includes behaviour that is threating, coercive or in any way controls of dominates a person and causes that person to fear for their personal safety or wellbeing or that of someone else.
Examples of domestic violence included:
Ø causing personal injury to a person or threatening to do so;
Ø coercing a person to engage in sexual activity or attempting to do so;
Ø damaging a person’s property or threating to do so;
Ø threatening a person with the death or injury of the person, a child of the person, or someone else;
Ø threatening to commit suicide or self-hard so as to torment, intimidate or frighten the person to whom the behaviour is directed;
Ø unauthorised surveillance of a person (examples of surveillance by using technology including reading a person’s SMS messages or monitoring a person’s email account or internet browser history)
2. Change in requirements for Court to make a Protection Order
Prior to the introduction of the Act, the Court could not make a Protection Order unless they were satisfied that:
Ø an act of domestic violence occurred;
Ø a domestic relationship exists; and
Ø 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 Act repeals the third requirement so there is no need for the Court to be satisfied that there is a likelihood of domestic violence occurring again, however this is something that the Court can have regard to. To make a Protection Order the Court needs to be satisfied of the first 2 requirements and also a new requirement that an Order is necessary or desirable to protect an aggrieved from domestic violence.
3. Guidelines for naming children of protection orders
The legislation now provides guidance to the court to consider when it is appropriate to name a child on a protection order. The court may, in a domestic violence order, name a child of the aggrieved, or a child that usually, lives the aggrieved, if the court is satisfied that naming the child in the order is necessary or desirable to protect the child from associated domestic violence, or being exposed to domestic violence committed by the respondent.
4. Broader police powers
The new legislation provides police with broader powers where there is domestic violence.
The police can issue protection notices, and a condition on such a notice may prohibit the respondent from entering, attempting to enter, or remain at the stated premises, or approach or attempt to approach the aggrieved , or contact or attempt to contact or ask someone else to contact the aggrieved. This notice can be made for up to 24 hours.
The detention powers of police have also been increased, and police can detain a person for up to a period of 8 hours if they reasonably believe it is necessary to make arrangements for the safety of the aggrieved or a child; or where a police officer reasonably believes the person is intoxicated to an extent that the person is incapable of understand the nature and effect of a document that must be provided when the person is to be released from custody.
To assist with the problem of serving a respondent with a Protection Order, the police have the power to request a person remain at a locality for a time reasonably necessary for the police offer to serve the respondent with an application. Further, the legislation now provides that a Temporary Protection Order will continue in force until the final Protection Order is served, therefore the respondent can be in breach of the order if they are made on similar terms despite the fact they have not been served.
5. Stronger Penalties
There are now increased penalties for those who breach protection orders. The general maximum penalty for contravening an order has been increased to 2 years imprisonment, and $6,000 in fines (previously 12 months, and $4,000).
6. Provisions for witnesses in domestic violence proceedings
The legislation puts in place safeguards for witnesses giving evidence in domestic violence proceedings. Witnesses may be able to give evidence outside the courtroom by video link, give their evidence behind a one-way glass screen so that the witness cannot see the respondent, have the witness give evidence from a room outside of the courtroom, be accompanied by a person approved by the court to provide emotional support, and any other alternative arrangements the court considers appropriate.
These changes provide victims of domestic violence with more protection. If you have any questions in relation to this article, or require legal assistance with a domestic violence issue, please contact our office to discuss.
