Proving family violence in court is notoriously difficult, due to the domestic and isolated nature of the offence.
However, it’s important to note that courts do not place as much emphasis on evidence in family violence cases. That said, it’s still in your best interest to get as much evidence as possible.
With family violence, a court is not bound by the rules of evidence
It’s important to note that under the Domestic and Family Violence Protection Act 2012, a court is not bound by the strict rules of evidence, or any practices or procedures applying to courts of record.
The court may inform itself in any way it considers appropriate, including being satisfied just by considering the probability that family violence has occurred or is likely to occur in the future.
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The 2012 Act includes a revised definition for domestic and family violence which includes behaviour such as economic, emotional and psychological abuse, physical or sexual abuse or other behaviour which controls or dominates another person.
The definitions of domestic and family violence contained in the Act reflect the contemporary understanding of domestic and family violence, particularly regarding the types of relationships and behaviours covered by the new legislation. The nature and characteristics of domestic and family violence comprise behaviours used to exert power and control over another person.
In addition, the definition includes behaviour that is physically or sexually abusive, threatening or coercive, or behaviour that in any other way controls or dominates another person.
Grounds for making a protection order
Under the previous legislation (the Domestic and Family Violence Protection Act 1989), in determining whether or not to make a protection order, the court needed to be satisfied that:
- an act of domestic violence had occurred;
- a domestic relationship existed; and
- the person who committed domestic violence was likely to do so again, or if the act of domestic violence was a threat, that the person was likely to carry out the threat.
The 2012 Act replaces the ‘likelihood’ element with a requirement that a court be satisfied that an order is necessary or desirable to protect a victim from domestic violence. This change focuses the court’s attention on the protective needs of the victim, and whether imposing conditions on the perpetrator’s behaviour is necessary or desirable to meet the victim’s needs.
The court may still consider evidence which suggests that domestic violence may occur again, or a threat may be carried out, however the court does not need to be satisfied that such an event is ‘likely’.
Further, a court can look at other factors, including whether a victim is in fear, when it is determining whether an order is necessary or desirable to protect a victim from domestic violence.
Naming children on domestic violence orders
The previous 1989 Act did not provide any specific guidance to a court when considering whether to include a child as a named person on a domestic violence order. A named person receives the same protection as the victim.
The effects on children of witnessing or being exposed to domestic violence are well documented and can include medium and long term psychological harm. The 2012 Act includes specific considerations for including children on orders, such as whether naming the child is necessary or desirable to protect the child from being exposed to domestic violence.
Police powers and functions relating to domestic violence
The 2012 Act places a more proactive duty on police officers to investigate suspected domestic violence and to take action to respond. The Act makes it clear that this obligation is in addition to a police officer’s responsibility to investigate a criminal offence, and includes a requirement for an officer to make a written record of their reasons for not taking any action after an investigation.
The 2012 Act also provides for the introduction of short-term police protection notices, meaning that police can issue a protection notice to provide immediate safety to the victim. A notice will act as an application to the court for a protection order. A police protection notice includes the option of a 24 hour ‘cool down’ condition, where the perpetrator to the notice is required to leave the premises and not approach or contact the victim during the cool down period.
The 2012 Act provides police with powers to detain a perpetrator in high risk situations where there is a danger of injury to a person or property. The detention period can continue for up to eight hours where a person is intoxicated and incapable of understanding the requirements of an order, application or release conditions and for up to four hours where a person’s demeanour may present an ongoing danger of injury or property damage.
Under the previous 1989 Act, some perpetrators managed to avoid being charged with a breach of a domestic violence order by making it difficult for police to serve the order on the perpetrator. An order is not enforceable if it has not been served. Under the 2012 Act, police have the power to require a person to remain at a location for the time reasonably necessary for the police officer to serve the perpetrator or advise them of the conditions of an order if the officer does not have a copy of the order. This is hoped to improve the safety of victims by increasing the opportunities for police to ensure that service requirements are met and protection orders can be enforced.
If you think you may be the victim of domestic and family violence, seek help. Our Brisbane family lawyers know how to navigate the complexities and provide you with confidential advice. Contact McCarthy Durie Lawyers today on 07 3370 5100 or fill out the contact form here.
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