FAQs for Domestic Violence Matters

The laws surrounding domestic violence have changed significantly in the last decade. Over a five year period[1], there was on average, nearly 30,000 applications for a domestic violence filed each year.[2]

In this series of blogs, we will answer some frequently asked questions with respect to domestic violence laws in Queensland.

Part 1

What is domestic violence?

The meaning of “domestic violence” is very broad. It occurs when two people are in a “relevant relationship” and involves behaviour that:

• is physically or sexually abusive;
• is emotionally or psychologically abusive;
• is economically abusive;
• is threatening;
• is coercive; or
• in any other way controls or dominates that person and causes that person to fear for

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]

I was charged with a criminal offence and was found not guilty. I am innocent.  How can that alleged conduct still form part of a DVO application against me?

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.

My ex applied for a DVO against me. Can I take out one against them?

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:

• the cross applications are to be heard together;[10]
• the Magistrate is required to decide “the person who is most in need of protection in the relationship”;
• the Court should consider whether it is necessary to make arrangements for the safety, protection or wellbeing of the person most in need of protection; and
• the Magistrate should only make one order to protect the person most in need of protection, unless there are exceptional circumstances where there is clear evidence that both parties need protection from each other and it isn’t possible to decide whether one person’s need is greater than the other for protection.[11]

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:

• whether the person was acting in retaliation?
• were they trying to protect themselves?
• were they responding to a long history of domestic violence?[13]

The Court must consider things such as:

• the history of the relationship and domestic violence between the two people;
• the nature and severity of the harm caused;
• the level of fear experienced;
• which person has the capacity to seriously harm the other or to control or dominate the other; and
• whether the persons have characteristics that may make them particularly vulnerable to domestic violence (eg. societal or cultural factors).[14]

 

[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.