PAN EUROPE ASIA CONFERENCE ST MORITZ JANUARY

PAN EUROPE ASIA CONFERENCE

ST MORITZ

DOMESTIC VIOLENCE

Legislation in Queensland

and

the demonisation of characters…….

Has the Legislation gone too far or not far

enough?

2

Presented by

Mr David Reardon Principal

Reardon Family Lawyers QLD Law Society

Accredited Family Law Specialist P: (07) 5527 0676

“It is no less important for the

legal profession than it is for

the wider community to help

save a life or prevent violence

in the home.”

Queensland Government Special Task Force on

Domestic and Family Violence on the

‘NOT NOW, NOT EVER: Putting an end to Domestic

and Family Violence in Queensland”

Report released early 2015

Announced 140 recommendations to be implemented including 4 specific recommendations relating to the role of lawyers to Domestic and Family Violence.

Retiring Chief Magistrate, Southport Court, Ron

Kilner, on his final day on the Bench, said:

 “Domestic Violence Laws are being used as a “weapon” to obtain

favourable rulings in the Family Court or permanent residency.”1

 and that: “Domestic Violence Orders were being obtained, were used to

achieve control over a Respondent, advantage at a Family Court or for non-residents to obtain residential status without waiting the required 2 year waiting period – under existing legislation, migrants on spousal visas can skip the 2 year wait for permanent residency if they obtain a

Domestic Violence Order.” 1

 and: “The balance had shifted and the positive outcomes that were

The Task Force made certain recommendations

and White Ribbon Campaign

Special Task Force Recommendation 80 was Queensland Government:

 Increase access to Domestic and Family Violence Perpetrator Intervention

Initiatives

 Prioritising areas identified for roll out of integrated responses to ensure

state-wide coverage within 3 years – recognising that quality perpetrator interventions are a key component of best practice integrated services response model

WHITE RIBBON AUSTRALIA

Works to change community perception that Domestic and Family Violence (D & FV) is a “women’s issue” by

highlighting that a woman’s safety is a man’s issue too. DV Connect Men’s Line Manager, Mark Walters’ speech Queensland in the “Enough Rally” 16 October 2015 –

“Each act of gendered violence sends shudders down every honest man’s spine because it’s not “them and us” not “good men against bad men”. It’s a shared

Objects, principles and definitions of

Domestic and Family Violence Protection

Act 2012 (Qld)

Section 3 Main Objects are:

 To maximise the safety, protection and wellbeing of people who fear or

experience Domestic Violence, and to minimise disruption to their lives.

 To prevent or reduce Domestic Violence and exposure of children to

Domestic Violence.

 To ensure that people who commit Domestic Violence are held

Section 4 – principles for administering the Act

1. This Act is administered under the principle that the safety, protection or wellbeing of people who fear or experience DV including children are

paramount.

2. Subject to sub-section 1, this Act is also to be administered under the following principles:

(a) people who fear or experience DV including children, should be treated with respect and disruption to their lives minimised.

(b) perpetrators of DV 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 make them particularly vulnerable to DV, any response to the DV should take account of those characteristics.

Examples of people who may be particularly vulnerable to DV:

 Women

 Children

 Aboriginal people and Torres Strait Islanders

 People from a cultural or linguistically diverse background  People with a disability

 People who are lesbian, gay, bi-sexual, transgender or inter-sex  Elderly people

(d) in circumstances in which there are conflicting allegations of DV or

indications that both persons in a relationship are committing acts of DV, 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.

Domestic and Family Violence

Protection Act 2012 (Qld)

Section 8 – meaning of domestic violence:

DV 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 else.

Section 4AB – definition of family violence etc:

For the purposes of this Act, family violence means:

1. 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. For the purpose of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effect of family violence.

Section 8(2) – without limiting sub-section 1, DV 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 a 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.

Section 10 – meaning of exposed to domestic violence:

A child is “exposed” to DV if the child sees or hears DV or otherwise experiences the effects of DV.

Examples of being exposed to DV:

 Overhearing threats of physical abuse

 Overhearing repeated derogatory taunts including racial taunts  Experiencing financial stress arising from economic abuse

 Seeing or hearing an assault

 Comforting or providing assistance to a person who has been physically

abused

 Observing bruising or other injuries of a person who has been physically

abused

 Cleaning up a site after property has been damaged

OBSTACLES and CHALLENGES

1. Perpetrators are often skilled in mounting convincing/compelling arguments as to why they need to behave this way.

2. Many perpetrators justify, minimise, deny, excuse and blame others so that they do not have to deal with their behaviour.

3. Deep seated beliefs and values to change require sustained engagement.

4. Mediation is criticised as being inappropriate intervention due to power imbalances.

5. Best practice guidelines for lawyers working with respondents in DV proceedings:

 Improve your understanding  Prioritise safety

 Facilitate accountability  Acknowledge DV is a crime  Respect others ………  Respond collaboratively

DOMESTIC VIOLENCE BACKGROUND

 In 2012 Queensland Police recorded 11,958 DVO breaches – 3,737 more

incidents than 2008.

 The South-East corner alone has an increase of 45% from 2009 to 2014.

 The annual cost of DV in Queensland is $2.7 to $3.2 billion.

 The annual cost to the Australian economy is estimated $13.6 billion.

 In 2013/2014 66,000 incidents of DV were reported to Queensland Police.

 One in four Australian women has experienced emotional abuse by a current or

Domestic Violence related deaths in Australia:

 An average of 72 women per year die because of DV.2

 Australian Institute of Criminology reports 61% of all homicides take place

in a domestic setting and 73% involve a woman being killed by a male partner.2

 During 2006 to 2012 there were 23 confirmed deaths linked to DV in

Queensland – 44% of our state’s homicides.2

 In 2015, 23 people (14 women, 5 children, 4 men) have been killed in

Queensland – 22 by men.2

 In 2014 to 2015, 29 homicides relating to domestic and family violence

MYTHS

“Women are as violent as men” – ignores such things as studies on:

 Homicides

 Survivor accounts

 Official crime data  Victimisation studies

 Crime studies

 Separation

Temporary Protection Order under s44

Only if a court is satisfied that (s45):

 A relevant relationship exists; and

 The respondent has committed domestic violence against the aggrieved;

and

 The TPO need only be supported by the evidence that the court considers

sufficient and appropriate having regard to the temporary nature of the order (s46)

Protection Order under s37

 Court is satisfied that:

(a) a relevant relationship exists between the aggrieved and the respondent; and

(b) the respondent has committed domestic violence; and (c) the protection order is necessary or desirable to protect

the aggrieved from DV (s37(1))

- the civil standard of proof, i.e. on the balance of probabilities is all that is required (s145(2))

Meaning of “necessary or desirable”

Magistrate Costanzo considered the meaning in WJM v NRH [2013]QMC12 referring to his earlier decision in ARMOUR v FAC[2012]QMC22

 The test is stated in the alternative so that a court may find it desirable to

make an order without finding it necessary, e.g. where a perpetrator of DV needs to be held accountable, a court may find it necessary to make an order without finding it desirable.

The Oxford English dictionary defines”

“necessary” - that is needed: needed to be done, achieved, or present: essential, indispensable, vital, essential requisite: also of an action that needs to be done, that is done in order to achieve a desired result or

effect if necessary if required by the circumstances and “that which is an indispensable and necessary thing, an essential or requisite.

“desirable” – worthy to be desired, to be wished for and that which is desirable, a desirable property or thing.

 The need for protection must be a real one not some new speculation or

fanciful conjecture.

 The court needs to assess the risk to the aggrieved and assess whether

management of the risk is caused for.

 The risk of further domestic violence and the need for protection must

Meaning of necessary or desirable

In MDE v MLG and Queensland Police Service [2015]QDC151, the District

Court considered the meaning of “necessary” or “desirable” and the process for determining whether it was necessary or desirable to make the order. Morzone QC DCJ said:

 The third element in s37(1)(c) is that the protection order is necessary or

desirable to protect the aggrieved from DV.

 The focus of this element is the paramount need for protection of an

aggrieved from DV and whether imposing a protection order is necessary or desirable to meet that need.

 The use of the phrase “necessary” or “desirable” invokes a very wide and

general power and should be construed in a similarly liberal manner to enable a court to properly respond and if appropriate tailor an order to protect a person from DV.

Process to be adopted in determining

whether

order necessary or desirable

Morzone QC DCJ in MDE & MLE & Queensland Police Service expressed the view that the element of whether the order is

necessary or desirable to protect the aggrieved from DV requires a 3 stage process:

1. Firstly the court must assess the risk of future domestic violence between the parties in the absence of any order.

2. The court must assess the need to protect the aggrieved from that domestic violence in the absence of any order.

3. The court must then consider whether imposing a protection order is necessary or desirable to protect the aggrieved from the DV.

Southport is now leading Australia with 2 Domestic Violence Courts headed by Judge Strofield and Judge

Tynan and has made observable changes at the Southport Court.

Who can apply for an order?

Can only be made by (s25):

 An aggrieved

 An authorised person for an aggrieved, i.e. an adult authorised in writing

 A Police Officer acting under s100(2)(a)

 A person acting for the aggrieved under another act such as the

Guardianship & Administration Act 2000 or under the Powers of Attorney Act 1988 (14.12 for persons with impaired capacity)

Protected Witnesses

Section 150 – if:

 an aggrieved

 a child

 a relative or associate of the Aggrieved

is named in the Application the Court must consider whether to make any of the following orders:

 That the protected witness give evidence outside the courtroom and

evidence be transmitted to the court room by means of audio visual link

 That the protected witness give evidence outside the courtroom and an

audio visual record of the evidence be made and replayed in the courtroom

 That a screen, one-way glass or other thing be placed so the protected witness

cannot see the respondent

 While a protected witness is giving evidence that the respondent be held in a

room apart from the courtroom and the evidence be transmitted to that room by means of an audio visual link

 That the protected witness be accompanied by a person approved by the court

for the purpose of providing emotional support

 If the protected witness has a physical or mental disability then the protected

witness give evidence in a particular way specified by the court that will in the court’s opinion minimise the protected witness’ distress

 Any other alternative arrangement the court considers appropriate

However if the protected witness is a child the court must make at least one of the orders mentioned in sub-section 2(a), (b), (c) or (d).

Restrictions on cross-examination in person

1. Section 151 applies if:

(a) A protected witness gives evidence in a proceeding;

(b) A respondent in the proceedings wishes to cross-examine the protected witness; and

(c) The respondent is not represented by a lawyer.

2. The court, on its own initiative or on the application of a party, 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 the protected witness to:

(a) suffer emotional harm or distress; or

(b) be so intimidated as to be disadvantaged as a witness.

3. However if the protected witness is a child, the court must make an order that the respondent may not cross-examine the protected witness in person.

Evidence

Section 145 of the Act provides that a DFVP Court is not bound by the rules of evidence. Important therefore to obtain corroborative evidence.

Section 33 of the Ac

t

proceedings if permission is granted by the DFVP Court including relying on evidence in previous criminal or child protection proceedings.

Can a child be a Respondent?

 A child can be named as a respondent in an application

or in a Police Protection Notice only if an intimate personal relationship (i.e. spousal, engagement or

couple relationship) or informal care relationship exists between the child and the aggrieved (s21(1) & (2)).

 A child cannot be named as a respondent where there is

a family relationship between the child and the other part.

 A child is defined in the schedule as “under 18 years of

When a court may name a child on the order (s53)

The court may name a child of the aggrieved or who usually resides with the aggrieved, i.e. spends time at the residence of an aggrieved on a regular or ongoing basis (s24(2)) if the court is satisfied naming the child is necessary or desirable to protect the child from:

 Associated domestic violence (means DV by a respondent towards a named

person other than the aggrieved (s9)

 Being exposed to domestic violence by the respondent (defined in s10)

Conditions applied:

 S56 - standard condition – respondent be of good behaviour toward the

aggrieved and not commit DV against the aggrieved (s56(1)(a))

 Can also include a named person and a child  Any other condition the court considers:

 Necessary in the circumstances

 Desirable in the interests of the aggrieved, any named person or the

respondent (s57(1))

 The court should also consider, e.g. a condition enabling contact for the

Cross Applications

Where conflicting allegations of DV including for their self protection, the person who is most in need of protection should be identified (s4(d)) being consistent with the notion that DV is characterised by one person being

subjected to an ongoing pattern of abuse by another who is motivated by the desire to dominate and control.

A Cross Application may be used by a respondent to continue victimising the aggrieved to exact revenge or gain a tactical advantage in other court proceedings?

Restrictions on behaviour:

Including from approaching or attempting to approach the aggrieved, from contacting the aggrieved, from locating or attempting to do so and stated behaviour towards a child of the aggrieved.

Recovery of personal property (s59) and Family Law exceptions:

Ouster and return – Ouster order can prohibit respondent from:

 Remaining at premises

 Entering or attempting to enter premises  Approaching within a stated distance

and, pursuant to s64(3) the court must give reasons for either imposing an Ouster condition or not imposing an Ouster condition relating to the aggrieves usual place of residence.

Orders under the Residential Tenancies & Rooming Accommodation Act 2008 (s139 – s141)

If an Ouster condition is imposed on a respondent who is a tenant, the aggrieved may be able to apply under the Residential Tenancies & Rooming Accommodation Act 2008 for:

 S245 for an order to be recognised as a tenant instead of the respondent; or

 S321 for an order terminating the tenancy (and a s233 interim order pending the

s141 of the Act confers jurisdiction on the Magistrates Court to hear and decide tenancy applications and perform any other function or exercise any other power conferred on QCAT for a tenancy application.

An order of the Magistrates Court about the tenancy application is taken to have been made under the QCAT Act for the Residential Tenancies & Rooming

Accommodation Act 2008 (s141(6)).

s141(1) – the court is not bound by the rules of evidence or any practices or procedures applying to courts of record and may form itself in any way it thinks appropriate

Closed Court:

s141(3) – the court must not be open to the public unless the court orders otherwise.

s97 orders can last up to 2 years.

There is a prohibition on the publication of any evidence or information that is likely to identify a person as a party to the proceedings (s159(1)).

Costs

S157 provides each party must bear their own costs however the court may award costs against a party who makes an application that the court hears and decides to dismiss on the grounds that the application is malicious, deliberately false, frivolous or vexatious (s157(2)).

As to the meaning of “malicious”, “frivolous” or “vexatious” see LKF v MRR [2012]QDC 355 where an application was dismissed and costs awarded on the basis the defendant had failed to establish any acts of DV by the

respondent and failed to comply with directions and had consistently sought to adjourn matters for her own purposes with costs thrown away.

Part 7 of the Rules sets out how costs are to be assessed and a lawyer is

entitled to charge and be allowed costs in accordance with the scale set out in Schedule 1 of the Rules (Rule 52(3))

Appeals

Appeals are to the District Court and must be filed within 28 days after a decision is made.

s168 provides appeal to be decided on the court’s record of the original hearing but Appellant Court may order appeal be heard afresh in whole or in part.

Part 6 sets out process for registration of interstate orders made by a court of another state, territory or New

Penalties for breach

The maximum penalty for contravention is 60 penalty units or 2 years

imprisonment (s177(2)(b)) unless respondent has previously been convicted of a breach within the proceeding 5 years, in the latter case maximum

penalty increases to 120 penalty units or 3 years imprisonment (s177(2)(a)).

See Penalties & Sentencing Act for

First offence, no previous records - a fine and recognizance

Second offence – a fine to a maximum of $1500 and recognizance

From 1 December 2015 breaches of offences such as convictions for DV

breaches can be entered on a person’s criminal record and in circumstances of aggravation now an indictable offence can be handled summarily up to 3 years imprisonment and after that to the District Court for up to 5 years imprisonment.

Clients have options for consenting “without admission” or responding to DV

Applications however adverse findings made by the court can have consequences on other legal matters.

Clients need to be aware of what constitutes a breach of a DV Protection Order. D & FV can’t be excused because of a cultural, religious, social or other factors and remain unlawful.

Need to consider referring clients to established migrant/refugee or indigenous welfare services, disability support services or gay and lesbian organisations for support.

Legal Aid does fund interpreters where required.

RELATIONSHIP WITH FAMILY LAW ORDERS

The Family Law Act 1975 (Cth)FLA Division 11 of Part 7 governs the interaction between DV orders and Family Law orders (including parenting orders, recovery orders and other orders or injunctions under the FLA).

The general rule is that orders under the FLA prevail over inconsistent orders under Family Violence Legislation (s68P and s68Q) however state courts have jurisdiction to revive, vary, suspend or discharge certain Family Law orders when making Family Violence orders (s68R). The court may do this on its own initiative or on application of a party.

This assists the court to establish consistency between DV orders and orders under the FLA.

The FLA defines Family Violence orders as orders under a prescribed law of a state or territory to protect a person from family violence (s4).

An applicant for a DV order or variation of such is obliged to inform the court about any Family Law order of which they are aware and, if possible, give a copy of the order to the court (s77).

Findings of fact in the Magistrate Court can impact adversely in other areas.

Applications filed in the Federal Circuit Court will also require the filing of a Notice of Risk detailing the

Objects of part and principle

Family Law Act 1975 (sect 60B)

1. The objects of this part are to ensure that the best interests of children are met by:

(a) ensuring children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent

consistent with the best interests of the child; and

(b) protecting children from physical or psychological harm from being subjected, or exposed to abuse, neglect or family violence; and (c) ensuring children receive adequate and proper parenting to help

them achieve their full potential; and

(d) ensuring parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

Family Law Act 1975 (Cth)

Case – Langdon & Dodd [2015]FamCA 407@479

“There is an intervention order which has been made by consent between the parties. I do not draw any adverse inferences against the father from the making of this order because it was made by consent without admission of the allegations as to the need for the order.”

Case – Spanos & Hallett [2015]FamCA 458@119

“Family violence orders have applied, however because the fundamental facts which underpin them are unable to be resolved, absence independent objective evidence, the inferences which can be drawn are limited. They extend to really nothing more than that the dynamic between these parties is one of volatility, conflict and hostility.”

Suggest parenting arrangements that reduce exposure to conflict and prioritise safety of women and children.

Provide appropriate information to perpetrators about the voluntary intervention programs.

Voluntary Intervention Programs under Part 2 Division 6 of Act

14 services funded by Queensland Government to provide perpetrator intervention initiatives for Townsville, Mt Isa, Gold Coast, Murgon,

Toowoomba, Rockhampton, Brisbane, Cairns, Roma, Maroochydore, Ipswich and Logan

Service and practitioners for the elimination of abuse Queensland (SPEAQ) states that this translates to approximately 1200 places per year.

The Law was passed, not to make people be nice and respectful of each

other, but to protect the vulnerable from harm within the family or intimate relationship setting and DV is a pattern of behaviour that instils fear and control over the victim and involves physical, psychological, verbal,

financial, spiritual control and not couples counselling.

There are distinctions between the civil and criminal ramifications of a Protection Order.

Domestic Violence Connect

- Runs the largest DV service in Australia and provides a men’s line.

- Men have been victims of DV but these cases are not common and men

who live in fear do not generally live in fear of a woman but of another man.

- Main referral sources – probation and parole – 44.7%

- DV Connect Men’s Line – 17.5%

- Anglicare Mental Health & Family Wellbeing Southern Queensland work

with men who use violence or abuse in relationships, a partner or children who are facing DVO proceedings, breached DVO’s (multiple times), charged with assault, GVH and those who may have spent time in jail and now on parole (median age profile 33)

Anglicare – living without violence

Men’s Domestic Violence Intervention

Program

Request client feedback about what is most helpful including learning better communication skills and becoming a better person for their families.

Statistics

Client profile showed:

 45.8% attended Year 10, 32.2% attended up to Year 12 and 17.7% had post school

qualifications

 72% a relationship of which 18% were married and 1.9% divorced

 59% employed, 36% unemployed

 Victim type 95.1% spousal, 4.9% other family

 Mental Health concerns – 47.1%

 Substance abuse – 22.3% engage in low risk drinking, 10.7% engage in harmful and hazardous

United Kingdom – Project Mirabal by

Liz Kelly and Nicolle Westmarland –

January 2015

UK DV Perpetrator Programs – Steps toward change

 Must provide a support worker for women whose partner is

attending the 12 month program.

 Multiple data collection strands including 11 DV PPPS’s and 5

telephone surveys covering 6 time points over a 15 month period.

 Improvements were found in all 18 quality indicators which showed

dramatic and significant reduction particularly for physical and sexual violence, e.g.

 Made you do something sexual which you did not want to do –

30% of women ↓ to 0

 Used a weapon – 29% to ↓ 0

 Slapped you, pushed you or thrown something at you – 87% ↓

7%

 Women reported being physically injured – 61% ↓ 8%

DOMESTIC & FAMILY VIOLENCE PROTECTION ACT

2012 (QLD)

DOMESTIC & FAMILY VIOLENCE PROTECTION RULES

2014

The main purpose of the Rules is to ensure DFVP proceedings proceed in a way that :  is consistent with the Act

 resolve proceedings in cost effective way

 facilitates just and expeditious resolution of the issues

Domestic V & FPA (2012)(Qld) requires personal service such as an Application for a Protection Order on a person to be served by a Police Officer. Importantly Part 4 Division 2 of the Rules sets out directions about:

 how a respondent’s lawyer is permitted to cross-examine an aggrieved, named person or

child

 to give evidence by telephone, video link or other form of communication

Further reading:

1. “Killing the Beloved – homicide between adults sexual intimates” by Patricia Weiser Easteal, Australian Institute of Criminology, Crime & Justice 1993

- analysis of data relating to homicide between sexually

intimate partners describe circumstances and contributing factors

- provides ……… basis for prevention and questions sentencing

practices of judiciary

2. “The Canadian Experience – domestic homicide and death reviews”.

Looks at trends, patterns, followed by key findings of the Ontario DV Death Review Committee including risk factors, recommendations for improvements.

Contacts

Services and Practitioners for the Elimination of Abuse Queensland (the SPEAQ Network)

Email: SPEAQ.secretariat@gmail.com

Phone: 0434 198 281 C/- DV Connect

P O Box 10575

Adelaide Street Brisbane Qld 4000

Anglicare Southern Queensland

Email: pmonsour@anglicaresq.lrg.au

Phone: 1300 114 397

P O Box 8121 Woolangabba Qld 4102

Legal Aid Queensland Webinar Domestic Violence No.2 Working with Respondents, Fiona Fairbrother and Paul Monsour.