New Domestic Violence Laws Coercive Control

On Friday 14 October 2022, the Queensland Government introduced new legislation to parliament implementing a raft of changes to the Domestic and Family Violence Protection Act 2012.

The changes have been brought about by the Hear Her Voice women’s safety and justice task force report headed up by retired President of the Court of Appeal, Justice Margaret McMurdo.

The taskforce can be a considered a sequel to the Not Now Not Ever Report which led to sweeping changes to the domestic violence laws back in 2015.

What a taskforce does is to essentially go out into the community and receive feedback from the public regarding their experience in the domestic violence space, including from victims, social workers, police officers and so forth. By the very name Hear Her Voice obviously this report was focused on women and its purpose was to make recommendations regarding our current domestic violence laws and systems as it relates to the female experience.

The new offence of ‘Coercive Control’ will be introduced but not until 2023. The explanatory note provided the following definition: ‘Coercive Control’ constitutes a pattern of behaviours perpetrated against a person to create a climate of fear, isolation, intimidation and humiliation.

The definition of domestic violence in the DFVPA has been amended to make it clear that emotional and psychological abuse includes a ‘patten of behaviour’ as a foundation to behaviour which is to be considered as coercively controlling.

Possibly one of the most anticipated changes to the DFVPA is in the area of Cross Applications. For a long time, the women’s advocates have been arguing that Cross Applications are being used to undermine the protection of women and as a tactic used as a defence against domestic violence allegations.

The amendments make it clear that where there are competing allegations of domestic violence, the “person most in need of protection” must be identified and unless “in exceptional circumstances” where there is clear evidence that each of the parties in the relationship are in need of protection from each other then only one party should have a protection order in their favour, in other words there should not be cross-orders.

The amendments to the Act, also now provide a guideline of factors for the Court to consider when determining which party is “most in need of protection” encapsulating the concept of ‘Coercive Control’ as set out bellow:

The behaviour towards them is more likely than not to be:

(i)             abusive, threatening or coercive; or

(ii)            controlling or dominating causing the person to fear for their safety or wellbeing (or that of their child, another person or animal, including a pet); and

(iii)           the person’s behaviour is more likely than not to be for the self-protection of themselves (or their child, another person or animal, including a pet), in retaliation of the other’s person behaviour towards them (or their child, another person or animal,  including a pet), or attributable to the cumulative effect of the other person’s domestic violence towards them.

Additionally to determine “the person most in need of protection” the Court will now consider:

(a)   the history of domestic violence and the relationship between the parties;

(b)   the nature and severity of the harm caused to each other;

(c)   the level of fear experienced by each person;

(d)   which person has the capacity to seriously harm the other person, or control or dominate the other person and cause fear; and

(e)    whether the persons have characteristics that make them “particularly vulnerable” to domestic violence.

The Act also now includes the power of the Court to make a Costs Order against a Respondent if it determines that in making the cross-application, they intentionally engaged in behaviour or a ‘continued pattern’ of behaviour that is domestic violence towards the respondent to the application, specifically noting that this behaviour is ‘systems abuse’ or ‘legal abuse’.

Under the new laws, the Court will now also be able to consider a copy of the Respondent’s criminal history and domestic violence history as part of the application’s process and not just in breach proceedings.

Personal service by the Police of the domestic violence application is also no longer required and a party may apply for substituted service in circumstances where it has been difficult to serve the respondent personally.

The Bill also seeks to address a number of housekeeping issues in relation to other pieces of legislation, not specifically unrelated to domestic violence.

The offence of Stalking under the Criminal Code, for example, has been expanded to encapsulate behaviour which involves the use of telecommunications, GPS and the internet. This modifies the traditional in person stalking definition to include being tracked by GPS or other technologies and being stalked online. So, lookout social media stalkers!

Discussion

The amendments to the Act for the most part are common sense, for example, allowing a Magistrate or Judge to view a person’s criminal and domestic violence histories when determining to make a protection order and the updates to the offence of stalking to keep up with technology in the modern day.

In our experience, clients have been reluctant to take out a domestic violence order against their ex because they are fearful their own behaviour may be called into question and a cross-application may be taken out against them. So better guidance around this area has certainly been needed. The Court Room often becomes a mudslinging match where there are competing allegations of domestic violence, when it really ought not to be.

In circumstances, where there are many first applications being heard on an ex parte basis (without the other person present or aware of the application) it is difficult to see, how cross-applications are going to be heard at the same time prior to the respondent being served.

There is a risk the legislation will create a perception that cross-applications are generally not granted and should not be filed. It also creates the potential for a situation where members of the public are rushing to the courthouse so that they are the first person to file their domestic violence application to secure being considered the person most in need of protection, potentially the Court will need to manage this carefully if it does become a problem.

In some situations, both parties are genuinely engaging in domestic violence and one person may then be left without protection, remembering this could then effect family members who are not then protected by being named as an associate on the protection orders.

In others cases, domestic violence allegations are being used to gain an advantage in family law proceedings, for property settlements and care of children arrangements. The amendments continue not to address any safeguards around this potential area for abuse of the legislation.

For example, there could be a codification into future legislation in relation to the process for filing Undertakings which would assist those who would otherwise be adversely affected by consenting to domestic violence orders, such as, for the need to retain certain licences or clearances for the purposes of employment.

Undertakings are written promises entered into with the Court not to engage in certain behaviours, such as, not to have contact with a person or go to certain places, instead of having a domestic violence order.

The reason often cited by lawyers for not agreeing to their client resolving domestic violence proceedings on the basis of an undertaking, is because undertakings are not enforceable. However, if the offence of Contravention of Domestic Violence Undertaking was added to the law resulting in an automatic 5-year domestic violence order being made on proven breach, then this would certainly provide the much-needed assurance of enforceability desired.

Domestic violence proceedings have and always will be a difficult area of law from an evidentiary perspective as for the most part it always happens in private behind closed doors.

With the Royal Commission into the Police Response to Domestic Violence happening in Queensland at this present moment, it will be interesting to see what further recommendations come about and if the domestic violence legislation will also be amended from a policing perspective.

The latest amendments are only the first step in the process of criminalising the concept of Coercive Control with more changes to come. One can only hope that the legislation can continue to improve the protection of victims of domestic violence whilst not detracting from human rights such as natural justice and procedural fairness.

To be continued…

Mike Kilmartin

Legal Practitioner Director

Kilmartin Legal