Opening of Southport’s specialist Domestic and Family Violence Court

Businesswoman in front of a bookcase

On 19 October 2017, the Attorney-General and Minister for Justice Yvette D’Ath officially opened Southport’s permanent specialist Domestic and Family Violence Court.  The renovations reflect the caseload of Southport’s specialist DFV court which has dealt with more than 12,000 matter since the trial began in September 2015.

The renovations include:

  1. A dedicated registry counter for enquiries and filing DFV court applications;
  2. Secure entry for courtrooms
  3. Video conferencing facilities for female victims too fearful to attend court in person and witnesses.
  4. Quiet room for distressed women;
  5. Secure children’s play area,
  6. Meeting room facilities for men and their legal and support services, and
  7. Sound-proofed meeting rooms.

The $2.69 million renovation to upgrade Southport courthouse is in addition to the $69.5 million previously allocated to domestic and family violence courts in the 2017-18 State Budget.

The opening follows the appointment of two specialist Magistrates for the Southport DFV Court – Clare Kelly and Louise Shepherd.

Do you require legal advice or representation regarding a domestic violence matter? Call Gatenby Criminal Law now on (07) 5580 0120 or send us a message online.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice, you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

DV Applications: How To Apply For A Domestic Violence Order

Domestic violence bailIf you are in a domestic relationship and the subject of domestic violence you may be eligible to complete a DV application for a Domestic Violence Protection Order.  The person applying for the Order is called the Applicant.  The person being served with the application is the Respondent.

The process is relatively straightforward.  Domestic Violence Legislation is aimed at protection rather than punishment. The process has been simplified to ensure that DV applications can proceed in the best interests of the parties.  The clear intention of the legislation is to act protectively.

You need to attend the Registry of your nearest Magistrates Court and obtain an Application for a Domestic Violence Protection Order.

A DV Application can also be downloaded online.

Completing the DV Application.

You should complete the DV Application providing as much detail as you can to ensure that the Magistrate understands your situation.

You can apply for an urgent Temporary Protection Order. The Court registry staff can assist you with this. An urgent Temporary Protection Order (TPO) is an Order that is made in the absence of the Respondent, or person from whom you are seeking protection. If a Magistrate decides that it is necessary and desirable they can make an Order protecting you from the Respondent on a temporary basis, until the Respondent is served and appears in Court.

You do not need to serve the DV Application on the Respondent, the Police will look after this for you.

MENTION

Generally, unless you have an urgent Temporary Protection Order Application, the Registry will list your matter for a “Mention” three to four weeks after your DV Application is lodged. This is not a Hearing date and often the matter will not be finalised.

This is simply a date where the Magistrate is advised what is happening with the application. In some instances the Respondent will not have been served and the matter will need to be adjourned for another Mention.

Where the Respondent has been served and simply does not attend Court, the matter may proceed to finalisation. A Magistrate may grant a final Order where there has been no appearance by the Respondent.

If the Respondent has been served and consents to the making of an Order, the Magistrate may grant the final Order and the matter will be at an end.

If, however, the Respondent does not consent to the making of the Order the matter maybe listed for a Hearing.

HEARING

The Hearing of a Domestic Violence Application is conducted before a Magistrate.  They will determine:

  1. whether a domestic relationship exists;
  2. whether an act of domestic violence has occurred; and
  3. whether it is necessary and desirable for a Protection Order to be made.

At the Hearing your evidence may be by way of Affidavit or alternatively you may be required to give evidence by sitting in the witness box.

If the Respondent does not agree with what you say, they have an opportunity to cross-examine you either in person or through their legal representative.

The Respondent may also give evidence by way of an Affidavit or in person, in the witness box. You are also entitled to cross-examine the Respondent if you do not agree with what they say.

An Applicant has the opportunity to have the Police Prosecutor appear on their behalf or alternatively they can have a private Domestic Violence Lawyer or a Legal Aid Solicitor appear.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Responding to a Domestic Violence Application

DOMESTIC VIOLENCE RESPONDENT

If you have been served with a Domestic Violence Protection Order Application you are referred to as the respondent.  As a Respondent you should give thought to how you want to proceed with the Application.  You may either:

  • contest the Application; or
  • consent to the making of an Order.

If you do not appear in Court then the Magistrate can make a Domestic Violence Protection Order in your absence. This will mean that the Order is made and that the conditions being sought by the Applicant will be granted.

PROTECTION ORDER CONDITIONS

You should carefully consider the conditions that are being sought. The Court has a power to prohibit you from coming within particular distances of specified addresses and or people. They can even exclude you from attending your own premises.   If you are in any doubt you should urgently contact a Solicitor for advice.

FIRST RETURN DATE OPTIONS

At the first return date you have a number of options:

  1. Request an adjournment;
  2. Consent to the making a DV protection Order; or
  3. List the DV Application for hearing.

CONSENT TO DOMESTIC VIOLENCE ORDER

You can appear in Court and agree to the making of a Domestic Violence Protection Order. You might advise the Court that you do not agree with any or all of the allegations contained within the Application, but you nonetheless wish to consent to the Order being made.

In those circumstances the Magistrate will make a two year Domestic Violence Order. The conditions being sought by the Applicant will likely be granted.

ADJOURNMENT APPLICATION

If you are uncertain about how you wish to proceed with the matter you can ask the Magistrate for an adjournment.   In granting an adjournment the Magistrate may make a Temporary Protection Order.

LIST FOR HEARING

If you disagree with the making of a Domestic Violence Order, you can indicate to the Court that you wish to oppose the Order. The Magistrate will then set a Hearing date.

At the Hearing, the Applicant will be required to give evidence and call any of the witnesses that they wish to rely upon. You are able to cross-examine the Applicant and their witnesses yourself or alternatively you may seek to use a skilled advocate to do this on your behalf.

You will also be required to give evidence and you can call witnesses to give evidence on your behalf. The Applicant is entitled to cross-examine you and your witnesses either themselves or through the Police Prosecutor or private Domestic Violence Lawyer, should they have one.

The Magistrate will then make a determination based upon the evidence that has been called and if they accept your position no Order will be made or alternatively the Court may impose a Domestic Violence Order with some or all of the conditions that have been sought.

Learn More:

Learn more about Domestic Violence in relation to the law:

Disclaimer

This website contains general information about legal matters. The information is not advice, and should not be treated as such. You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Bail (Domestic Violence) and Another Act Amendment Bill 2017

Domestic violence bailOn Valentines Day 2017, the Opposition Leader, Tim Nicholls introduced the Bail (Domestic Violence) and Another Act Amendment Bill 2017 into the Queensland Parliament. The Bill will see a massive change to domestic violence bail laws.

The proposed Bill was prompted by the tragic death of Ms Terresa Bradford, who was killed by her estranged husband two weeks earlier.  Sadly the death was not uncommon with eighteen Queensland women dying in DV related incidents in 2016.

Policy Objectives

The Bill has five policy objectives:

  1. Reverse the presumption of bail for an accused charged with a relevant domestic violence offence;
  2. Create a special bail condition for GPS trackers for people charged with a relevant domestic violence offence;
  3. Create a mandatory reporting system to alert an alleged victim of domestic violence when the accused:
    • applies for bail;
    • is released on bail; or
    • receives a variation to a bail condition.
  4. Create a mandatory reporting system when a prisoner (whether or not convicted of domestic violence):
    • applies for parole; and
    • receives parole
  5. A process to stay grants of bail for three (3) days, while bail is appealed by police.

Presumption against domestic violence bail

Where a person is held in custody for an offence that they are yet to be convicted of,  the Court would usually grant bail, unless the police can demonstrate that the person is an unacceptable risk.  This onus is shifted in the Bail Act where the person:

  1. is already on bail and is alleged to have committed an indictable offence;
  2. is charged with an offence that carries mandatory life imprisonment;
  3. is charged with an offence that carries an indefinite sentence;
  4. is alleged to have breached the Bail Act
  5. is charged with contravening a control or public safety order contrary to the Criminal Organisation Act;
  6. is charged with an offence of making threats with a circumstance of aggravation;
  7. if the person has at any time been a participant in a criminal organisation;

The proposal is that the Court would have to refuse bail to an accused where they were charged with a ‘relevant domestic violence offence”.  That is, the legislation will reverse the onus in relation to relevant domestic violence offences and an accused person will need to demonstrate why they should be granted bail.  The definitions provision in section 6 of the bail act will be amended to define a relevant domestic violence offence as:

  1. Choking, suffocation or strangulation in a domestic setting
  2. Deprivation of Liberty
  3. Stalking
  4. Arson
  5. A serious violent offence (SVO) as defined in the Penalties and Sentences Act, if the offence is also a Domestic Violence offence.

GPS Tracker

In our earlier blog post ‘Electronic Tracking for alleged Queensland DVO Offenders‘, we discussed GPS Trackers.

Under the proposed legislation a tracking device is:

an electronic device capable of being worn, and not removed, by a person, for the purpose of the Queensland Police Service finding or monitoring the geographical location of the person.

The Bill requires a court or police officer authorised to grant bail to consider requiring an accused person to wear a tracking device while the person is released on bail.

The Bill also requires that the court consider imposing a special condition that prohibits the accused from approaching within a stated distance of a place regularly frequented by the complainant for the offence such as their place of residence or workplace.

Domestic Violence Bail Alert

Where a person charged with a relevant domestic violence offence (see above) makes an application for bail or an application to vary their bail, the prosecutor must give the aggrieved notice of the application within 24 hours of the application being made.

If bail is granted the Court or Police must give notice to the aggrieved of the date that the person is released and the date that the person is next required to appear at Court.

This information is to be provided immediately to the ‘person at risk’.

Parole Alert for victims of Domestic Violence

The Corrective Services Act 2006 is also amended by the Bill to enable an ‘eligible person’ to receive information about a prisoner.  An eligible person can be any person who satisfies the Chief Executive that they have been the victim of Domestic Violence, perpetrated by the prisoner.  It is not a requirement that the prisoner is in custody for an offence against the eligible person.

The chief executive must provide the person with:

  1. the prisoners eligibility dates for discharge or release;
  2. the prisoners date of discharge or release;
  3. the death or escape of the prisoner; or
  4. any particular circumstance that could reasonably be expected to endanger the physical safety of the person.

Review of Domestic Violence Bail Decisions

A prosecutor can appeal the decision to grant bail to a person charged with a relevant domestic violence offence.  In those circumstances the accused person can be held in custody until 4:00pm, 3 business days after the decision is made.  So that a person granted bail at 10:00am on a Friday morning could be held in custody until 4:00pm the following Wednesday.

If the person has been released prior to the appeal by the prosecutor, the reviewing Court may give effect to the stay, by issuing a warrant of apprehension.

The prosecution has always had the power to appeal the decision of a court to grant bail.  The current amendment is to permit the police to hold the person in custody for up to three business days.  This provision is said to mirror section 40 of the New South Wales Bail Act.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

Electronic Tracking for alleged Queensland DVO offenders

Domestic violence offenderFollowing the January 30 death of Teresa Bradshaw, there is a call for bail conditions to include the wearing of a tracking device by alleged domestic violence offenders.  Ms Bradford was killed by her estranged husband, who was on bail for DV offences at the time of her death.

The Queensland Police Minister, Mark Ryan said that he has on ‘open mind’ on the introduction of the technology.  This move has also been supported by the Queensland opposition leader, Tim Nicholls.

Electronic monitoring was first considered by Dr Ralph Schwitzgebel in 1964.  The technology has since been refined and used in American Courts since 1983. It has the ability to ensure that an alleged domestic violence offender does not:

  1. enter proscribed areas;
  2. approach particular people, such as complainants, victims; or
  3. approach co-offenders.

The complainant, can have a device which will alert authorities should the defendant approach within a pre-determined range.  The rationale is that police can be notified before actual contact occurs and thereby prevent further acts of domestic violence.

Interstate Approach to tracking alleged domestic violence offenders

In late 2016 the NSW Department of Justice trialed 60 Electronic Tracking Devices for Domestic Violence Offenders.

Victoria has had the power to order tracking devices and is said to be happy with the results.

The ACT and Northern Territory are said to be closely watching the New South Wales Trial.

Current Queensland Bail Legislation

Currently the Bail Act allows the Court to impose conditions that are necessary, having regard to:

  1. the nature of the offence;
  2. the circumstances of the defendant; and
  3. the public interest.

In Lacey v DPP [2007] QCA 413 the Queensland Court of Appeal was required to consider the issue of tracking devices in a bail application brought by Mr Lacey.  Lacey was charged with a number of offences including attempted murder, torture and deprivation of liberty.  There was some considerable delay with his matter reaching trial.  Lacey applied for bail and offered the condition that he would submit himself to electronic monitoring.  The Court of Appeal said

It is pointless and impractical to impose a condition which cannot be monitored and enforced. As neither police nor Corrective Services personnel have been equipped by government to carry out the necessary monitoring, no such condition could be attached to a bail order.”

While Queensland Courts do have the power to impose such conditions, it is clear that some form of government monitoring is required before such a scheme could be successfully implemented.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice on Domestic Violence you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

What to consider when contesting a Domestic Violence Application

Domestic Violence

Contesting a Domestic Violence Application under Queensland’s Domestic Violence legislation can be a daunting.  You should carefully consider the Application before you decide how to respond to it.  We provide our tips for challenging a Protection Order.

Does a relevant relationship exist?

Not all relationships are protected by the Domestic and Family Violence Protection Act.  For an order to be granted the Applicant must establish that the relationship is:

  • an intimate personal relationship;
  • a family relationship; or
  • an informal care relationship.

If the Applicant can not establish this then the Court can not grant a Protection Order.

Does the application establish that Domestic Violence has occurred?

The Applicant must establish that an act of Domestic Violence has occurred.  Domestic Violence means behaviour towards another person that is abusive, threatening, coercive or controlling of the other person.

If the behaviour does not meet the threshold of Domestic Violence then the Court can not grant a Protection Order.

Does the application set out why it is necessary or desirable for an Order to be made?

If you agree that there was an act of domestic violence and that you are in a relevant relationship, you may still contest the making of a protection order.

The Applicant has to satisfy the Court that the making of a Protection Order is necessary or desirable

Are the conditions sought reasonable?

The Applicant can seek an order with the mandatory conditions, to be of good behaviour and not to commit acts of Domestic Violence.

The Applicant can also seek more restrictive conditions such as no contact direct or indirect.  They may also seek conditions  that require you to leave the family home and not return.

You should very carefully consider the conditions that are being sought and think about whether they are reasonable.  In some instances it may not be practicable to have no contact with the Applicant, for example if there is a need to see mutual children or attend a joint workplace.

In considering whether it is necessary or desirable to make a protection order the court must consider the principles set out in Section 4 Domestic and Family Violence Protection Act 2012 and whether any voluntary intervention has been entered into.

Who else does the order seek to protect?

A domestic violence application can seek to protect:

  1. the aggrieved;
  2. children who usually live with the aggrieved; and
  3. relatives and associates of the aggrieved.

A protection order can restrict contact with not only the Aggrieved but also, children, relatives and other associates.

Will a Lawyer Help?

Our lawyers have a wealth of experience in Domestic Violence matters and can provide you with pragmatic advice.  We can assist you in understanding the conditions that are being sought and appear as advocates.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

 

Domestic Violence Legislative Changes

Angry man overpowering his girlfriendIn response to the recent spate of domestic violence deaths, last week the Queensland Government has fast-tracked a number of recommendations of the former Governor-General, Quentin Bryce’s “Not Now, Not Ever” Report into Domestic Violence. The Legislation to be introduced to Parliament this week will:

  1. Increase maximum penalties for first-time breaches of DVOs to three years jail and subsequent breaches to up to five years jail.
  2. Give victims “special witness” status when giving evidence in court proceedings.
  3.  Record domestic violence-related offences on a person’s criminal history to reveal repeated family violence offending.