Last updated 14 March 2022
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/trial (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 to 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. If this happens, the court may also make a temporary order that is valid until a final decision is made.
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 hearing may take up a whole day, and child care arrangements should be made by either party to accommodate this.
Court staff can arrange additional safety precautions for the aggrieved at a court if needed such as waiting in a safety room at the court rather than the public waiting area. The aggrieved should complete a safety form.
Children may only give evidence in the proceedings with the leave (permission) 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 being asked questions by 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.