Last updated 8 June 2016
The Domestic and Family Violence Protection Rules
The Domestic and Family Violence Protection Rules 2014 (Qld) (DFVP Rules) govern the court process and ensure applications are resolved in ways that minimise expense, and proceedings are just and expeditious in a way that is consistent with the objects of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act). The DFVP Rules provide guidance on:
- how to prove personal service
- what happens with subpoenas
- whether a court can make directions
- appointing litigation guardians
- how evidence can be presented to the court
- how affidavits can be presented.
The initial court process
After an aggrieved has filed an application for a domestic violence order, there can be many ‘short’ court appearances before the application is finalised—these are called ‘mentions’. The aggrieved will be provided with the first court date when they lodge the application form at a Magistrates Court. This date will be included in the documents that are served on the respondent.
The length of time that an application is before the court, how the application proceeds in the court process, and whether it is finalised by agreement or by a hearing (and giving of evidence) will depend upon a lot of factors. The respondent could agree to the application by consent, agree to the application without admitting the content of the application, or they could contest or oppose the application. Sometimes it takes a long time for police to locate and serve the original application or any order that is made on the respondent.
If both the aggrieved and the respondent are in court and agree to the order then the magistrate may make the domestic violence order (s 51 DFVP Act). If the two parties do not agree, the magistrate may make a temporary order.
If the respondent is not present and has not been served with a copy of the application, the court may adjourn the case and make another date for the mention (s 40 DFVP Act). If this happens, the court may also make a temporary domestic violence order that is valid until a final decision is made, if it is satisfied that a relevant relationship exists between the aggrieved and the respondent, and the respondent has committed domestic violence against the aggrieved (ss 44–45 DFVP Act).
If the respondent is not present at the mention and the court is satisfied that they have been served, the court may make a final domestic violence order (s 39 DFVP Act).
In some magistrates courts, the magistrate will actively manage the court process and will require the parties to file written material by a certain date (e.g. an affidavit) and set a date for the hearing. Practices vary from court to court.
If the respondent opposes the making of an order, then the magistrate will make a date for a ‘hearing’ of the application. This will allow evidence to be heard from one or both of the parties and for cross-examination (asking questions of the witness) to occur. The magistrate will then make a decision about whether the application satisfies the requirements of the DFVP Act. The court is not required to follow the rules of evidence and only has to be satisfied that it was more probable than not that the acts alleged by the aggrieved had occurred (not that it was beyond reasonable doubt that they occurred).
The aggrieved may bring their own support person to court, but they are not permitted to speak for the aggrieved unless they have made the application as an authorised person. The aggrieved may complete a safety form if they require court staff to provide security measures (e.g. a safe room) when they attend or leave court.
Children may only give evidence in the proceedings with the leave of the court, and only if the child is over 12 years old, is represented by a lawyer and agrees to give evidence (this is not applicable if they are the applicant or respondent to the application).
The court must also consider whether to make an aggrieved, a child or a relative/associate of the aggrieved ‘a protected person’ in the proceedings. Being a protected person allows them to give evidence in a way that is not as confronting as being in a court room and facing the person they allege has caused them harm. Examples of this may be:
- allowing them to give evidence outside the court room and via audio visual link either live or via replay
- placing a screen or one-way glass so that the aggrieved cannot see the respondent
- making the respondent stay in another room while the aggrieved gives evidence.
The court can also order that the respondent, if not represented, cannot ask questions or cross-examine a protected witness (s 151 DFVP Act).
The court is closed to the public. There are restrictions against publishing information about the case to the public.
Each party to a proceeding under the DFVP Act must pay their own costs for the proceeding. However, a court may award costs against a party who makes an application that the court hears and decides to dismiss on the grounds it is vexatious, malicious, deliberately false or frivolous (s 157 DFVP Act).
Appeal of decision—time limits
If the person who applies for the order or the respondent disagrees with the magistrate’s decision, it can be appealed. The appeal must be lodged within 28 days from the date the magistrate’s decision is made or, if the decision was made in the absence of the person who wishes to appeal, the earlier of either 28 days after the day on which a copy of the decision is served on that person, or 28 days after the day on which a police officer tells that person about the existence of the decision (s 165(4) DFVP Act).
The appeal must be made in the District Court, and it is very important to seek legal advice as the procedure is very complex.
Breach of a domestic violence order
Breaching the conditions of a domestic violence order is a criminal offence. Once reported, the police should investigate, and if it can be proved the order was broken, the respondent can be charged with breaching the domestic violence order. They could also be charged with other criminal offences depending on the circumstances. A conviction for contravening or breaching an order can attract 240 penalty units or five years imprisonment if the person has been convicted of breaching the order in the previous five years, otherwise 120 penalty units or three years imprisonment.
Assistance for the aggrieved
An aggrieved has several options for court appearances. They may represent themselves, be represented by a police prosecutor or ask a lawyer to appear for them.
Assistance from a police prosecutor
A police prosecutor will represent an aggrieved where the police are making the application for a domestic violence order on their behalf.
A police prosecutor may also appear for an aggrieved who is making their own (private) application for a domestic violence order. The aggrieved should approach the police prosecutor in court and ask for assistance as practices vary from court to court.
Assistance from a lawyer
Legal representation can be obtained through Legal Aid Queensland if a person is eligible for a grant of aid. Community legal centres may also be able to assist an aggrieved to complete their application for a domestic violence order and with representation. Otherwise a solicitor in a private law firm may be engaged.
A person can apply for legal aid through a solicitor in a private firm, which is approved to do legal aid work, or by going directly to a legal aid office.
Legal Aid Queensland has a specialist team in this area—the Violence Prevention and Women’s Advocacy team. This team has lawyers, social workers and violence prevention workers who provide legal information, advice, representation and specialist social work support in family law, domestic violence, child protection and other related matters.
A domestic violence duty lawyer service has been introduced in most major courts in Queensland by Legal Aid Queensland. A lawyer is available for both the aggrieved and the respondent to provide legal advice on the day of court and in some cases representation in court.
Assistance from a domestic violence service
Many courts in Queensland have violence prevention workers who:
- assist an aggrieved to apply for an order
- help an aggrieved to access the court’s safety facilities
- explain orders to clients
- assist with completing applications
- liaise with the police prosecutor or court
- refer the aggrieved for legal advice and representation.
Additionally, local domestic violence services or refuge staff across Queensland will assist people affected by domestic and family violence in making an application for a domestic violence order or referring them to a service who will assist.
If the aggrieved wishes to authorise a person to apply for a domestic violence order, they should ensure that the person has experience in this kind of matter.