The Domestic Violence and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Bill 2022 (the DFVP Amendment Bill) was introduced into Parliament on 14 October 2022. As the bill is not yet law, but is more likely to be, we have summarised the key parts below.

Overview of key amendments:

In short, the DFVP Amendment Bill proposes amendments to relevant legislation to:
• modernise and strengthen the definition of stalking in the Criminal Code;
• broaden the definition of domestic and family violence to refer to a ‘pattern of behaviour’;
• strengthen the court’s response to cross application for protection orders to ensure the person most at risk is being protected;
• strengthen the court’s consideration of previous domestic violence history;
• modernise and update certain sexual offence terminology

Stalking definition
• Rename the offence of ‘unlawful stalking’ to ‘unlawful stalking, intimidation, harassment, or abuse’ (s 18).
• Incorporate and reflect technology-facilitated stalking (including electronic surveillance) by:
– Expanding stalking ‘by telephone’ to include any technology over any distance with examples given of SMS, email, apps, smart phone, social media, etc.
– Incorporating in its definition: monitoring, tracking or surveilling a person
– Incorporating in its definition: publishing offensive material online; as well as publishing a person’s personal information (s 19).

Penalties
• New circumstance of aggravation with maximum penalty of 7 years imprisonment where a domestic relationship exists between the offender and the stalked person (s 22)
• Increased max penalty for offence of contravening restraining order to 120 penalty units/3 years imprisonment (s 23)
• New circumstance of aggravation if person convicted of a DV offence in the 5 years before contravening the restraining order (with max penalty of 240 penalty units/5 years imprisonment) (s 23)

Domestic and Family Violence Protection Act 2012 (Part 4)
Definitions
• Amend definitions of domestic violence, emotional or psychological abuse, and economic abuse, to include reference to a ‘pattern of behaviour’ (ss 31–33)
• Meaning of domestic violence also to include behaviour that may appear over a period of time; and when considered cumulatively is abusive, threatening, coercive, or causes fear; and is to be considered in the context of the relationship as a whole (s 31).

Cross applications
• The court must decide the person most in need of protection in the relationship and only one DVO protecting that person should be in force except in exceptional circumstances (e.g., clear evidence that both persons need protection) (s 39)
• Require applications to be heard together where before the same court (s 37)
• Require court to consider whether to make arrangements for the safety of the person most in need of protection (e.g., give evidence from outside of the courtroom) (Relevant to Rec 49) (ss 37–38)
• The amendments also provide guidance for magistrates in determining person most in need of protection, such as considering:
– Relevant history
– Nature and severity of harm
– Level of fear experienced
– Capacity to harm, control, dominate
– Vulnerable characteristics (women, children, ATSI, CALD etc) (s 34).

Costs
• The court may award costs against an applicant if the court decides to hear and dismiss the application, and in doing so, decide that the party intentionally engaged in behaviour towards the respondent that is DV (intended to prevent a party intentionally using proceedings as a means of committing or continuing DFV) (s 49).

Criminal and DV history in civil proceedings
• Court must be given respondent’s criminal history and DV history (s 35)
• The court may consider the respondent’s criminal and/or DV history when making a protection order, temporary protection order, of varying a DV order (s 43)
• Definition of DV history includes all QLD current and expired DV orders and police protection notices. Interstate and NZ history included in definition, however only when recorded on QPRIME or in police commissioner’s possession (s 54).

Substituted service
• Applications and orders must be served personally by police officers—however the court may make a substitute service order if satisfied that: (1) reasonable attempts have been made; (2) serving the document in another way is necessary/desirable to protect the aggrieved; and (3) serving the document in another way is likely to bring the document to the attention of the respondent (s 53).

Reopening proceedings
• A respondent may apply to the court to reopen a proceeding if a court makes or varies a protection order and: (1) the application was served on the respondent under a substituted service; (2) the application was not brought to the attention of the respondent; (3) the respondent was not present in court when the application was heard and decided (s 50).

Evidence Act 1977 (Part 5)
Expanding class of protected witnesses for cross-examination
• New category of protected witness to include aggrieved or relative/associate of the aggrieved for a DV proceeding (which affords them protection from cross-examination by the respondent directly) (ss 48; 60).

Admission of evidence
• Relevant evidence of the history of the domestic relationship can be admitted in DFV criminal proceedings (s 64)
• Evidence of DV admissible whether it relates to the defendant, aggrieved, or another connected person (s 64)
• Provision of a non-exhaustive list of what may constitute evidence of DV, including for example: the cumulative effect of DV (including psychological effect); social, cultural, or economic factors; general nature and dynamics of relationships affected (s 64).

Expert evidence
• Expert evidence is admissible in a criminal proceeding and may include evidence about the nature and effects of the DV generally, and about the effect of the DV on the person (s 64).
• Expert evidence is not inadmissible only because the opinion is about a fact in issue, or a matter of common knowledge (which abrogates ultimate issue and common knowledge rules) (s 64).

Jury directions
• Court has discretion to give jury directions that address misconceptions and stereotypes about DV (s 67).

Sexual Assault Counselling Privilege
• A victim or alleged victim of a sexual assault offence has standing to appear at all stages of a sexual assault counselling privilege proceeding (s 58).

Penalties and Sentences Act 1992 (Part 7)
• History of DV orders made against an offender (as an adult) may be considered during sentencing when determining an offender’s character (s 81)
• When sentencing an offender who is a victim of DV, a court must treat the effect of the DV on the offender as a mitigating factor, unless considered unreasonable because of exceptional circumstances (s 80).

Youth Justice Act 1992 (Part 9)
• Courts must consider mitigating factor for child offenders who are victims of DV, and who have been exposed to DV (no exclusion in exceptional circumstances). (s 96).

Conclusion
As I said at the outset, the Bill is likely to become law shortly. If you have been charged with an offence relating to Domestic Violence or you wish to bring an application for a DV order, it is important to consult us immediately.

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If you are seeking the advice of a criminal defence lawyer, please contact Ryan Murdoch O’Regan Lawyers on 1800 999 529 and our specialist Criminal Defence Lawyers will help you in this difficult and vulnerable time.

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This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.