ByLawyers News and Updates

Domestic and family violence – QLD

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Some temporary procedural arrangements for initiating and hearing domestic and family violence applications in the Magistrates Court of Queensland have become permanent from 30 April 2022.

These arrangements were originally put in place as a response to the COVID-19 pandemic, but the resulting efficiencies have seen the parliament entrench arrangements that allow parties and practitioners to interact with the court remotely.

Amendments under the Justice and Other Legislation Amendment Act 2021 impact various Acts and procedures. Those relating to domestic and family violence matters include:

Audio visual link

A new section 142A of the Domestic and Family Violence Protection Act 2012 provides that the Magistrates Court may conduct all or part of the proceeding by the use of audio visual links, or audio links. This includes:

  • appearances;
  • giving evidence;
  • making submissions;
  • taking an oath or affirmation.

Electronic filing

A private application for a Temporary Protection Order (TPO), or an application to vary a TPO, can be filed electronically in any Queensland Magistrates Court if the court is closed on a normal business day, or if the applicant is required to isolate under a public health order.

Listing before verification

In circumstances of urgency, where a private applicant is unable to verify their application for a Temporary Protection Order before a Justice of the Peace or solicitor, they can obtain a hearing date, and then serve the application on the respondent, without verification. The application can be subsequently verified in front of the magistrate who hears the matter.

The commentary in the By Lawyers Domestic Violence guide has been updated accordingly. An alert has been added to draw practitioners’ attention to the likelihood that proceedings will involve audio visual appearances and evidence.

Domestic violence – QLD

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The By Lawyers Domestic Violence (QLD) publication has been reviewed. The matter plan has been revised and re-ordered for better workflow and searchability.

New or enhanced sections of commentary include:

  • Police applications for temporary protection orders and Police protection notices;
  • Interaction with family law orders;
  • Negotiating orders;
  • First return date;
  • Consent orders;
  • Subpoenas;
  • Withdrawing an application;
  • Variation of orders;
  • Breaches;
  • The National Domestic Violence orders Scheme; and
  • Appeals.

Additional links to relevant sections of the Domestic and Family Violence Protection Act 2012 have been inserted in the commentary. There are also links to the rules and to other relevant legislative instruments, such as the Acts Interpretation Act 1954 (Qld) which defines ‘spouse’ to include both a de facto partner and a registered partner.

This review is part of By Lawyers’ ongoing commitment to updating and enhancing our publications.

Apprehended violence – NSW

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Apprehended violence legislation in NSW has been amended.

Amending legislation

The Stronger Communities Legislation Amendment (Domestic Violence) Act 2020 commenced on 5 March 2021. The amendments affect a number of legislative provisions relating to apprehended violence orders, applications and proceedings.

Amendments

The By Lawyers Apprehended Violence Orders guide has been updated accordingly with all relevant amendments. These include:

  • the definition of ‘intimidation’ in the Crimes (Domestic and Personal Violence) Act 2007 now includes, in certain circumstances, actual or threatened harm to an animal;
  • a police officer may now issue a provisional AVO where there is a comparable interim or final order already in place and any such provisional order automatically becomes an application for a final order;
  • an apprehended violence order imposed by the court on offenders who are also sentenced to imprisonment for domestic violence offences continues for two years after the term of imprisonment is completed, unless another period is specified by the court;
  • a court may grant leave to make an application to vary or revoke an apprehended violence order which has an indefinite duration, if it is in the interests of justice to do so;
  • certain parts of AVO proceedings in which a complainant gives evidence must be held in closed court, unless a court otherwise directs;
  • domestic violence complainants now have the entitlement to give evidence using alternative arrangements to personal attendance, such as audiovisual link, in certain proceedings.

New standard order

There is also a consequential amendment arising from the Crimes (Domestic and Personal Violence) Amendment (Standard Orders) Regulation 2021 which commences on 27 March 2021. This amends the Crimes (Domestic and Personal Violence) Regulation 2019 to include in the standard orders a prohibition on harming any animals owned by, or in the possession of, the person in need of protection under an apprehended violence order.

Publication updates

In the course of making these amendments the AVO publication has also been reviewed by our author, with some minor enhancements made to the matter plan and commentary.

By Lawyers keeps you up to date!

Duration of orders – ADVOs – NSW

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The duration of orders for apprehended domestic violence (ADVOs) provided for in the Crimes (Domestic and Personal Violence) Act 2007 has been amended.

From 28 March 2020 the default duration of orders increases to 2 years for adult defendants. It remains 12 months for a defendant who was under 18 years of age at the time the application was first made.

Longer periods can apply if the court considers it necessary. Final orders can be for any period, including an indefinite period.

Unless the court specifies a different period, an order remains in force for the default period under s 79A of the Act. The parties can agree on a different period and the court can make such an order by consent.

Section 79A also sets out the matters to which the court is to have regard when deciding on the period of an order.

See Duration of orders in the commentary in the By Lawyers Apprehended Violence Order guide, within the NSW Criminal – Local Court publication, for further detail.

Amendments to domestic violence law – SA

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Recent amendments to domestic violence law have commenced in South Australia. They are contained within the Statutes Amendment (Domestic Violence) Act 2018.

Variation of interim orders

The new s 26A of the Intervention Orders (Prevention of Abuse) Act 2009 enables an applicant to apply to the court to vary an interim order issued by police.

Where such an application is made the court must hold a preliminary hearing as soon as practicable and without summoning the respondent to appear. An application can be made by telephone or other electronic means, and the preliminary hearing may occur by oral questioning of the applicant and any other available witness, or by other means contemplated by the rules including affidavit evidence. If the court thinks it appropriate, it may adjourn the hearing so the applicant can attend for questioning.

At the preliminary hearing, the court may:

  • issue an interim variation of the intervention order if it appears to the court that there are grounds for issuing the variation; or
  • determine that the application should be dealt with under s 26 without the issuing of any interim variation order; or
  • dismiss the application on any ground considered sufficient by the court.

Any interim variation issued by the court must require the defendant to appear before the court within eight days.

An interim variation of an intervention order issued by the court comes into force against the defendant when:

  • the order is served on the defendant personally; or
  • the order is served on the defendant in some other manner authorised by the court;
  • the defendant is present in the court when the order is made.

Admissibility of recorded evidence

Pursuant to the new s 13BB of the Evidence Act 1929 and the new s 28A of the Intervention Orders (Prevention of Abuse) Act 2009, the applicant, or someone else for whose protection an intervention order is sought, may give evidence via a recording. Section 28A applies in addition to, and does not derogate from, any other power of the court to receive evidence or to determine the form in which evidence may be received, including evidence in the form of a recording.

Domestic violence strangulation offence

The new s 20A of the Criminal Law Consolidation Act 1935 introduces a specific domestic violence strangulation offence—namely, choking, suffocating or strangling a person without consent with whom the offender is, or was, in a relationship. The maximum penalty for the offence is seven years imprisonment.

Amendment to publications

These amendments to domestic violence law have been incorporated into the commentary in the By Lawyers Intervention Orders guide for South Australia.

Domestic Violence Evidence In Chief – NSW

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A recorded video or audio statement of a domestic violence complainant, known as Domestic Violence Evidence in Chief, or DVEC, is admissible as evidence in chief in criminal proceedings for domestic violence offences and in concurrent or related proceedings for applications for apprehended domestic violence orders under the Crimes (Domestic and Personal Violence) Act 2007. This is pursuant to the provisions of Chapter 6, Part 4B of the Criminal Procedure Act 1986.

In the recent Supreme Court case of Director of Public Prosecutions (NSW) v Banks [2019] NSWSC 363  the court determined that a DVEC may be admitted to evidence even where the complainant is not present at the hearing of the matter – although whether or not it actually will be admitted depends on the provisions of the Evidence Act, as for any other piece of evidence.

The  considerations under the Evidence Act of the complainant’s reliability and the prejudice to the defendant of not being able to cross-examine the complainant still have to be overcome. A defendant’s solicitor should still be prepared to argue strongly against the DVEC being admitted in those circumstances.

The commentaries in the By Lawyers Criminal and Apprehended Violence Orders publications have been amended accordingly.

Family Violence Protection amendments – VIC

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Further provisions of the Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018 commenced on 29 March 2019.

Relevant amendments include:

  • Examples have been added to the definition of Family Violence in s 5 (10) (b) of the Family Violence Protection Act 2008;
  • Interim or final protection orders for children at the court’s own initiative have been added to s 53AB (2) and s 77B (3) of the Family Violence Protection Act 2008 where an interim or final order has not been made for  affected family member of the child;
  • A new Specialist Family Violence Court Division has been established under the Magistrates’ Court Act 1989 which has jurisdiction to deal with proceedings in respect to the Family Violence Protection Act 2008 and other relevant acts.

Corresponding updates to the By Lawyers Intervention Orders guide, found in the Magistrates’ Court Criminal and Magistrates’ Court Civil publications for Victoria, have occurred or are  underway.

Remaining provisions of the amending act commence on 1 September 2020 if not proclaimed before.

Domestic violence amendments – SA

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Some of the domestic violence amendments under the Statutes Amendment (Domestic Violence) Act 2018 have now commenced. The act makes a number of changes to domestic violence provisions, most of which commenced on 31 January 2019.

Amendments that commenced on 31 January 2019 include:

  • additions to the definition of ‘abuse’ in s 8 of the Intervention Orders (Prevention of Abuse) Act 2009 to include forcing a person to marry another person, preventing a person from entering the person’s place of residence and taking an invasive image (within the meaning of Part 5A of the Summary Offences Act 1953) of a person and threatening to distribute the image without the person’s consent;
  • increased penalties for breaching an intervention order, where a breach is a ‘second or subsequent’ offence, which generally means offences within 5 years of each other, AND the breach involves physical violence or the threat of it, then the maximum penalty is $20,000 and 4 years imprisonment (whereas the maximum penalty for a first offence is $1250 and 2 years imprisonment);
  • s 10A(d) of the Bail Act 1985 has been amended to classify certain domestic violence offences as ‘aggravated offences’ in  relation to which there is a presumption against bail;
  • new s 20A—Choking, suffocation or strangulation in a domestic setting has been added to the Criminal Law Consolidation Act 1935. This offence provides that a person who is, or has been, in a relationship with another person and chokes, suffocates or strangles that other person, without that other person’s consent, is guilty of an offence, the maximum penalty for which is imprisonment for 7 years.

Amendments yet to commence include:

  • where police are seeking to urgently vary an existing final order the court may now conduct a preliminary hearing in the absence of the defendant and may take evidence by telephone or such other means as the court determines appropriate and the rules of court allow;
  • where an Intervention order is sought by police, the applicant and anyone else for whose protection the order is sought, may give their evidence in the proceedings by recording and may only be cross-examined about that evidence if the court permits it.

These provisions are suspended until proclaimed, commencing on 6 December 2020 at the latest.

The commentaries in the By Lawyers Criminal SA and Intervention Orders SA guides have been updated accordingly.

Apprehended violence orders amendments- NSW

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On 1 December 2018 a number of provisions strengthening apprehended violence orders in NSW commenced:

  1. a new ‘without consent’ version of the s 37 Crimes Act 1900 offence of choking, suffocation and strangulation, created specifically for the domestic violence context by the Crimes Legislation Amendment Act 2018;
  2. provisions in the Crimes (Domestic and Personal Violence) Amendment Act 2018 making it clear that stalking and intimidation can be by internet or other such electronic means;
  3. new Crimes Legislation Amendment (Victims) Act 2018 provisions providing that proceedings for apprehended violence orders will be held in a closed court if they involve any person under the age of 18 years, with such persons entitled to have a support person present.

The By Lawyers Apprehended Violence Orders (NSW) guide has been updated accordingly.

Further, commencing 17 December, certain provisions of the Justice Legislation Amendment Act (No 3) 2018 mean that an apprehended domestic violence order can be made against a paid carer for the protection of a dependant, but not against a dependant for the protection of the paid carer.

There are also amendments pending proclamation in the Crimes Legislation Amendment Act 2018 which change the default duration of apprehended domestic violence orders.

The By Lawyers Apprehended Violence Orders (NSW) guide will be updated when these further amending provisions commence.

QLD Magistrates Court – Domestic Violence – Interpreters

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The By Lawyers Domestic Violence commentary has been updated to include a section on the Magistrates Court’s power to engage an accredited interpreter where required.

For private domestic and family violence proceedings, where the application indicates that either party requires an interpreter, the registrar will locate and retain an interpreter.

At the first mention, if the Court is satisfied that the interests of justice require an interpreter to be appointed to assist with the comprehension of the proceeding, the Court will order the appointment of an interpreter for further mentions.

In these circumstances, Queensland Courts will bear the cost of the interpreter’s engagement. See Practice Direction No. 6 of 2017.

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