Significant changes to the Domestic and Family Violence Act 2012 have come into effect from 1 August 2023. Those changes can be summarised as follows:
- The Court is now required to hear cross applications for a domestic violence protection order together (see section 41C(2)(a)).
- Unless there are exceptional circumstances, where there are cross applications, the Court must decide who is most in need of protection and dismiss the other application. This will require the court to consider, among other things:
- the behaviour of each person in the context of their relationship as a whole;
- the nature and severity of the harm caused to each person by the behaviour of the other;
- the level of fear experienced by each person because of the behaviour of the other;
- which person has the capacity to seriously harm the other or to control and dominate the other person;
- whether one person has any characteristics that make them particularly vulnerable to domestic violence. Examples include women, children, elderly and persons with a disability.
Whilst the legislation now has a greater focus on identifying who is most in need of protection where there are cross-applications, the court may still make an order to protect both persons if the court considers there is clear evidence that both parties are in need of protection and it is not possible to decide than one party is in greater need of protection.
- The Police are now required to produce to the Court the Respondent’s criminal and domestic violence history prior to, or at the first hearing. The criminal history will include any conviction or charge made against that person. The domestic violence history will include any previous order made in relation to domestic violence, or previous police protection notice issued. The court is now required to consider such history of the Respondent when considering whether to make a temporary or final protection order. In applications that have been filed prior to 1 August 2023, the Court can request the provision of the Respondent’s criminal and domestic violence history. The court can also make orders in relation to the release of the criminal and domestic violence history to the applicant if deemed relevant to the proceedings and orders for such information not to be disclosed if released.
- It is not uncommon for an application for a protection order to be resolved with the Respondent consenting to a final protection order on a “without admissions basis”. The court, when deciding whether to make or vary an order by consent, will have the ability to conduct a hearing in relation to the Application, if the court considers it is appropriate and in the interests of justice to do so.
- Historically it has been difficult to obtain a cost order in domestic violence proceedings. Section 157 of the Act has been amended to extend the circumstances where a Court can make a cost order against an Application, if an Application is dismissed and findings are made that in pursuing the Application, the Applicant has intentionally engaged in behaviour towards the Respondent that is domestic violence. This amendment is aimed at persons who are intentionally misusing the legal system.
- The court can now make an order for substituted service. This means if the Respondent cannot be personally located, the Court may make an order for substituted service if:
- the court is satisfied that reasonable attempts have been made to personally serve the Respondent;
- that service by other means (substituted service) is likely to bring the document to the attention of the Respondent; and
- substituted service is necessary and desirable to protect the Aggrieved.
This is a significant change as orders do not come into effect until they are served. Importantly for Respondents, if they are served by substituted service and the application at the time of service has already been heard, the Respondent can apply to reopen the proceedings within 28 days of becoming aware of the order being made. Unless the court decides otherwise, the order will continue in effect until the reopened proceeding has been decided.
To find out more about these changes, our family law team in Cairns can assist. Contact us today for an obligation-free consultation.