The laws surrounding domestic violence have changed significantly in the last decade. Over a five year period[1], there were on average, nearly 30,000 applications for a domestic violence order filed each year.[2]
Below, we will answer some frequently asked questions with respect to domestic violence laws, trials and protection orders in Queensland.
The meaning of “domestic violence” is very broad. It occurs when two people are in a “relevant relationship” and involves behaviour that:
their safety or wellbeing or the safety or wellbeing of someone else.[3]
The expanded definition (as per the August 2023 amendments) notes that behaviour, or a pattern of behaviour, as outlined above, may occur over a period of time and can be more than one act, or a series of acts, that when considered together is abusive, threatening, coercive or causes fear in the way described above.[4] The conduct should be considered in the context of the relationship between the two people as a whole.[5]
The legislation also includes specific examples of domestic violence.[6] Keep in mind that if a person is found to have counselled or procured another person to engage in behaviour that would be domestic violence, the person is still said to have committed domestic violence, even if they weren’t the person actually doing or saying the thing that amounts to domestic violence.[7]
The August 2023 amendments to the domestic violence laws have made it clear that ‘a pattern of behaviour’ can amount to domestic violence, by expanding various definitions. For example, the definitions of ‘economic abuse’ and ’emotional or psychological abuse’ both now include the wording ‘a pattern of behaviour’ by one person to another.[8]
To be found guilty of a criminal offence, the prosecution must prove its case beyond a reasonable doubt. This is called the standard proof.
If you win your criminal trial, you are found ‘not guilty’. There is no finding of innocence.
The standard of proof in civil (domestic violence) proceedings is lower than criminal matters – it is the balance of probabilities, so 50.01%.
The law states that even when criminal behaviour has not been proved beyond a reasonable doubt, a DVO can still be made if the conduct can be classed as domestic violence.[9]
So, yes, you may win your summary trial with respect to a criminal charge only to find that you still have to address that allegation in your DV trial.
If your ex applies for a DVO against you, they are the Aggrieved and you are the Respondent in those proceedings.
If you then apply for a DVO against your ex, that is called a “cross-application”. In your application, you would be the Aggrieved and your ex would then be the Respondent.
There were recent changes to the Domestic and Family Violence Protection Act (Qld) in August 2023 in relation to cross-applications.
The law now states where there are cross-applications before the Court:
There are also provisions that require the parties to disclose the existence of cross-applications[12] to ensure that the Court can hear the matters together and decide who is most in need.
The changes to the law explain how the Court should determine which “person is most in need of protection”. They look at things like:
The Court must consider things such as:
The costs provisions of the Domestic and Family Violence Protection Act were amended in August 2023 to allow costs orders to be made in a wider range of cases. However, there are still very limited circumstances where a person may be awarded costs in relation to domestic violence proceedings. You should talk to your DV lawyer about the likelihood of getting your costs back at the end of the proceedings.
The starting position is that each party must bear their own costs for the proceedings.
The only circumstances where the Court has power to award costs against the party who made the application is when:
OR
This expansion of the costs provisions is designed to capture circumstances of system abuse (also known as legal abuse).
In other words, costs can be awarded against a party where the person has intentionally misused the legal system by starting proceedings based on false allegations or as a way to exert control or dominance over the respondent to the application, or to intimidate, harass or torment that person.[16]
Since August 2023, police are required to make sure the Court has a copy of the Respondent’s criminal history and domestic violence history at the first court appearance, whether it is an application for a DVO, a Police Protection Notice or an Application to Vary an existing order. [17] If you have no history, the Police must make sure the Court knows that too.[18]
The Court is allowed to take into account your criminal history and/or domestic violence history at various stages of the matter. Whether that be at the time they are making a temporary protection order (TPO), varying an existing order or making a final protection order (DVO). [19] Some times they have to take it into account. Some times it is just another thing they can consider.
The Court can make an order restricting disclosure of your criminal or domestic violence history, and/or an order restricting the Aggrieved’s access to those histories.[20] Say you have a completely unrelated and dated entry on your criminal history, like a shoplifting offence from years ago, the Court can make an order that the aggrieved or the applicant not be told about that.[21]
A “domestic violence history” includes domestic violence orders, recognised interstate orders, NZ orders, and police protection notices[22]. These disclosure obligations include spent convictions. [23] So even if you had an assault on your criminal history from 15 years ago, which is now considered spent, the Court can still take it into account.
If the DV application was made before the August 2023 changes and has not yet been finalised, the Court has the power to request and consider your criminal and/or domestic violence history.
Since 1 August 2023, there are now provisions in the Domestic and Family Violence Protection Act for “substituted service”, but it only applies in limited circumstances.
Generally speaking, the law requires certain documents to be personally served on a respondent by a police officer.
However, they’ve made some exceptions to make sure that requirement for personal service doesn’t hold up court proceedings.
So, if there is a situation where:
then they can make an order that gives Police another way to serve the document.[24] For example, allowing service by email.
There are restrictions in place regarding substituted service.[25] The Court can be pretty specific about what the Police will need to do and regardless of how they do it, you still need to be given a copy of the document and have it explained to you, unless that’s not reasonable to do in all of the circumstances.[26]
If your documents were served by substituted service and the matter was decided in your absence, you might be able to apply to re-open the court proceedings.[27] A classic example arises if the documents were served to an incorrect email address, and you had no way of knowing. [28] Strict time limits apply for making any such application to re-open your case, so make sure you speak to one of our lawyers as soon as possible.
When they wrote the laws about domestic violence, they were very mindful that most things happen behind closed doors. Usually, there are no witnesses to domestic violence. As such, the Court does not require there to be photos or videos of what happened before they will make a finding of domestic violence. Your word is evidence.
Many people are surprised to learn that a person’s version of events is evidence in itself – whether it is what is written in the application for a DVO or in their affidavit or what they say on the witness stand.
Of course, if they do have photos or screenshots of messages or recordings, those things can help support their evidence, but it isn’t essential. Similarly, if you have things that will show the other person is lying, that raises questions about their version of events.
A person applying for a DVO has to set out the grounds as to why they need protection, giving examples of domestic violence they have experienced in the court forms. The application form requires them to sign an oath – that is, that they must confirm they are telling the truth and the form explains it is an offence to say something false in the application. That application forms part of their evidence.
If the matter goes to trial, the Aggrieved or Applicant will also file an affidavit, which is another document setting out their side of the story and is signed on the basis that the contents are true and correct. Similarly, if you are a Respondent in a domestic violence matter that goes to trial, you also will file affidavits setting out your side of the story. Both parties can also rely on evidence of others – so if you have a friend that was present at the party where the Aggrieved says you were being aggressive or controlling, you might ask them to give an affidavit setting out what they observed. If you didn’t get photos of your injury but your sister saw the injury, you might ask her to give a statement (affidavit).
When the Court considers all the evidence before it, the Magistrate has to be satisfied that it was more probable than not that the Aggrieved’s version is true, to be able to make the DVO. This is also known as “the balance of probabilities” (which is just over 50%) and is very different to the standard of proof in criminal matters (which is much higher).
Domestic violence trials are run differently to many other types of trials. Each party files evidence in the form of affidavits (and attached documents).
The ‘parties’ to the proceedings are people like the Police (if it’s a Police application or Police Protection Notice (PPN)), the Aggrieved (the person to be protected) and the Respondent (the person who is said to have committed domestic violence).
The Applicant or Aggrieved and the Respondent can also file affidavits from other witnesses – that might be Police who attended a domestic violence call out, it might be friends or family who have observed conduct that amounts to domestic violence or can cast doubt on the version provided by someone else.
Anyone who files an affidavit in the DV proceedings is expected to attend court and ‘testify’ (give evidence) at the hearing.
Once your matter gets to trial, the Magistrate reads all the affidavits filed and the witnesses (whether that is the Aggrieved, the Respondent, the police or some other witness) do not have to get in the witness box and give all that evidence again.
However, each person is required to get in the witness box to be cross-examined. Cross-examination is questioning, usually by the other party’s legal representative (for example, a prosecutor or a lawyer), that is designed to:
If a person doesn’t have a lawyer, they may do the cross-examining of the other person’s witnesses themselves, but there are restrictions in place about a Respondent cross-examining the Aggrieved.
There are also protections for vulnerable people who are required to give evidence in court. These protections are referred to as “protected witness” or “special witness” measures. You can read more about them below.
If a DV matter goes to trial, all the people who file affidavits need to get in the witness box at trial to be questioned by the other party or the other party’s lawyers. So yes, your ex will need to give evidence at trial. However, there are some special protections in place about how they give their evidence.
Firstly, the Aggrieved is automatically a “protected witness”. (So is a child or a named relative or associate of an Aggrieved). This means that the Court must consider whether they need to take any protective measures, such as:
Your ex can ask the Court for protections like these to be put in place, or the Prosecutor can, or the Court can raise it themselves.
As to whether you can question your ex, there are restrictions now that often stop Respondents from questioning the Aggrieved themselves. If you have a lawyer, it’s simple, your lawyer will cross-examine the Aggrieved on your behalf. But if you don’t have a lawyer yet, it’s more complicated.
Basically, the laws were changed to allow Courts to make orders that a Respondent cannot cross-examine (question) a ‘protected witness’ (aka the Aggrieved) if they think that the Respondent questioning them will cause emotional harm or distress or intimidate them so as to disadvantage them. The Court can decide this themselves or a person can ask them to consider the issue.
If the Court thinks your ex will fall into this category, they will make orders that you are not allowed to cross-examine the witness in person and give you a date or time where you need to update the court as to whether you:
If you cannot afford a lawyer, you should look into applying for legal aid purely for the purposes of questioning the Aggrieved. Otherwise, you might not get to question them at all.
Side note: if your ex rallies another ex of yours to come give evidence in support of their application, that ex may be able to apply for “special witness” measures too.
For example, if the Court thinks that they would be likely to suffer severe emotional trauma giving evidence or be disadvantaged as a witness because they would be so intimidated. [30] The law sets out similar measures for their evidence, like giving evidence by video or allowing rest breaks, etc. [31]
It depends.
We always recommend seeing a family lawyer as well as a domestic violence lawyer if you are a parent (or step-parent) and have a DV case against you. This is because the domestic violence proceedings can be brought up in family court and DVOs can impact your ability to see your child or children.
Even if there are no family court proceedings at the moment, it doesn’t mean there won’t be later on. It is much better to get the advice early BEFORE you make any big decisions about your DV matter, so you’ve put yourself in the best position to maintain contact with your children.
At Potts Lawyers, we work closely with some great family law firms and can point you in the right direction to get that advice. A family lawyer will give you advice about how any DVO will or could impact you seeing your kids and what they can do to assist you in that regard.
From a DV lawyer’s perspective, we can explain what impact the DV proceedings will or is having on you right now – whether there are any restrictions on you seeing or talking to your kids and what the consequences are if you breach any conditions.
The Police and Court have powers under the DV legislation to impose conditions that could impact you seeing your kids immediately. For example, if your children are named on the Police Protection Notice, Temporary Protection Order or final Protection Order (DVO), the Police and/or Court can impose a range of conditions in relation to the kids as well as the Aggrieved.
The starting point (if the kids are named persons in the application) is a requirement that you be of good behaviour towards the kids and not commit domestic violence against them or expose them to domestic violence. But there can also be extra conditions, such as:
It is important you get advice ahead of your first court date. If there are clauses in place that restrict your contact with your kids (such as those mentioned above), we can seek that exceptions be added to the conditions to reduce those limitations. For example, a no-contact clause can have a variety of exceptions added, such as:
It’s not always an immediate solution if the other party is withholding the children from you, but it will give you options to explore with a family lawyer about getting contact established again.
The lawyers at Potts Lawyers are renowned for representing clients for domestic violence matters in Queensland and the Northern New South Wales Region.
We act for clients facing domestic violence applications as well as those charged with criminal offences for breaching domestic violence orders
If you or someone else is involved in a DV situation, you should contact our office immediately to speak to one of our criminal defence lawyers in Brisbane or on the Gold Coast.
Click below to view some of the outcomes we have obtained for our clients facing domestic violence proceedings.
[1] Over the 2018/2019 financial year to the 2022/2023 financial year.
[2] Queensland Courts’ domestic and family violence (DFV) statistics, available at: DFV statistics | Queensland Courts. The table shows the number of originating applications across Queensland from 2018/2019 financial year to 2022/2023 financial year. The average of those numbers is 29,524.
[3] Domestic and Family Violence Protection Act 2012 (Qld), section 8(1).
[4] Domestic and Family Violence Protection Act 2012 (Qld), section 8(2).
[5] Domestic and Family Violence Protection Act 2012 (Qld), section 8(2).
[6] Domestic and Family Violence Protection Act 2012 (Qld), section 8(3).
[7] Domestic and Family Violence Protection Act 2012 (Qld), section 8(4).
[8] Domestic and Family Violence Protection Act 2012 (Qld), sections 11 and 12.
[9] Domestic and Family Violence Protection Act 2012 (Qld), section 8(5).
[10] See Domestic and Family Violence Protection Act 2012 (Qld), sections 41 to 41F.
[11] Domestic and Family Violence Protection Act 2012 (Qld), section 41G.
[12] Domestic and Family Violence Protection Act 2012 (Qld), section 41B.
[13] Domestic and Family Violence Protection Act 2012 (Qld), section 22A.
[14] Domestic and Family Violence Protection Act 2012 (Qld), section 22A.
[15] Domestic and Family Violence Protection Act 2012 (Qld), section 157.
[16] Domestic and Family Violence Protection Act 2012 (Qld), section 157(2)(a).
[17] Domestic and Family Violence Protection Act 2012 (Qld), sections 36A(1), (2) and 90A.
[18] Domestic and Family Violence Protection Act 2012 (Qld), sections 36A(3) and 90A(3).
[19] Domestic and Family Violence Protection Act 2012 (Qld), sections 37, 45 and 91.
[20] Domestic and Family Violence Protection Act 2012 (Qld), section 160A.
[21] Domestic and Family Violence Protection Act 2012 (Qld), section 160A.
[22] Domestic and Family Violence Protection Act 2012 (Qld), Schedule.
[23] Domestic and Family Violence Protection Act 2012 (Qld), section 189A.
[24] Domestic and Family Violence Protection Act 2012 (Qld), section 184A.
[25] Domestic and Family Violence Protection Act 2012 (Qld), section 184A.
[26] Domestic and Family Violence Protection Act 2012 (Qld), section 184A(3), (5).
[27] Domestic and Family Violence Protection Act 2012 (Qld), section 157A.
[28] Domestic and Family Violence Protection Act 2012 (Qld), section 157A(1)(b).
[29] Section 150, Domestic and Family Violence Protection Act 2012 (Qld).
[30] Section 21, Evidence Act 1977 (Qld).
[31] Section 21, Evidence Act 1977 (Qld).