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DFV e-Newsletter: September 2018
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Save the Dates - DFV Lunch Time Seminar Series
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- September 18: Professor Heather Douglas - Domestic and family violence, mental health and well-being and legal engagement
- October 2: Dr Philip Stahl - The Effects of Domestic Violence on Children and Considerations in Domestic Violence Proceedings
- October 16: Judge Eugene Hyman - Non-Adversarial Approaches to Domestic Violence: Putting Therapeutic Jurisprudence Theory into Practice
Professor Douglas researches in the areas of criminal justice and domestic violence and has published widely on criminal justice issues and around legal responses to domestic violence and child protection. Professor Douglas will be presenting her recent paper: Domestic and family violence, mental health and well-being and legal engagement.Dr Stahl is visiting from the US and presenting at the National Family Law Conference in Brisbane in September. In addition to his forensic psychology practice, Dr Stahl has been teaching forensic psychological issues for a DV course at the National Judicial College in the US since 2000.
Judge Eugene Hyman is a retired Judge of the Superior Court of California (County of Santa Clara). He is in Queensland presenting to Bond University students in September. For 20 years Judge Hyman served in the criminal, family, juvenile, and probate divisions of the court. Many of his cases had issues of domestic violence intersected with mental health and substance abuse issues and frequently parties were in more than one division of the court concurrently. He has lectured on issues of domestic violence besides the US in Canada, Germany, Australia, and New Zealand.
Calendar invites have been sent to all Magistrates.
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Morzone QC DCJ
Appeal allowed against decision to make a protection order in the absence of the respondent or his representative, in circumstances where the matter had been listed for a mention and the respondent was previously represented at prior mentions; considered whether the respondent was denied the opportunity to be heard by the application proceeding in circumstances where it had been previously been set for mention only. Morzone QC DCJ considered procedural fairness jurisprudence and sets out factors the court should have considered in deciding whether to proceed to hearing or adjourn the matter to a further date for hearing with notice to the respondent and/or his solicitor [at 40]. Morzone QC DCJ also made observations regarding s.145 and standard of proof required, stating at [45]: “Although not bound by the rules of evidence, it is well settled that the court’s decision must arrive from relevant, reliable and rationally probative evidence that tends logically to show the existence or non-existence of the facts in issue. It is not enough to suspect or speculate that something might have occurred…the seriousness of the allegations in the case and the gravity of their consequences warrant that a higher degree of certainty be satisfied on the balance of probabilities.”
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Horneman-Wren SC DCJ
Appeal against decision to vary protection order and whether the Acting Magistrate heard and determined the application to vary according to law (s.91(2)). Appeal allowed and remitted to Magistrates Court for a re-hearing. Found that the Acting Magistrate, in dismissing the application to remove children from the order on the basis it was a matter for the family court, failed to properly consider the grounds of the application and findings of court that made the protection order.
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ACP v McAuliffe [2017] QDC 294
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Horneman-Wren SC DCJ
Decision as whether a protection order was necessary or desirable to protect the aggrieved from domestic violence. Considered the three stage process of Morzone QC DCJ outlined in MDE v MLG & Queensland Police Service [2015] QDC 151 - Morzone's decision does not mandate those particular stages or steps.
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Legislation Update
Revenge porn lawsNew laws to criminalise revenge porn were introduced into Parliament on 22 August 2018 – see the Criminal Code (Non-consensual Sharing of Intimate Images) Amendment Bill 2018.
The laws, if passed, will apply to both sending, and threatening to send, intimate material without consent and will carry a maximum penalty of three years imprisonment. The definition will extend to photoshopped images – where an image has been altered to look like a person is portrayed in an intimate way. The threat to distribute an image applies whether the image exists or not.
The Bill also allows courts to make a rectification order for the images to be removed or deleted, with a two-year jail term if the order is breached.
The Bill will now be considered by the Legal Affairs and Community Safety Committee, with public submissions closing on 10 September 2018. The committee is due to report by 5 October 2018.
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Amendments to Family Law Act 1975: Expanded jurisdiction of States/Territories
The Family Law Amendment (Family Violence and Other Measures) Bill 2018 passed the Australian Parliament on 22 August 2018 and received Royal Assent on 31 August 2018. The Act commenced upon assent and so is now in effect.
The Act expands the family law jurisdiction of state and territory courts of summary jurisdiction, upon the making of regulations, by amending the Family Law Act 1975 (FLA) to:
- provide for courts to be prescribed in regulations as having the same family law parenting jurisdiction as state and territory courts of summary jurisdiction;
- provide for regulations to prescribe an increased total property value under which relevant courts can hear contested family law property matters without the parties’ consent (current limit is property value = $20,000).
The Act also:
- provides that a court may give short-form reasons for decisions relating to interim parenting orders;
- provides family law courts with an explicit power to dismiss unmeritorious applications;
- provides judges the discretion to dispense with requirements to explain an order or injunction to a child where it would be in the best interests of the child;
- removes the 21 day time limit on the revival, variation or suspension of family law orders by state and territory courts in family violence order proceedings.
As stated, the expanded jurisdiction will be triggered by the making of regulations. Under the legislation, the Commonwealth Attorney-General has to consult with the relevant State/Territory minister before making the regulations.
The Commonwealth Attorney-General Department has advised that regulations will be made with selected jurisdictions in order to pilot, and evaluate, the expanded jurisdiction. The objective of the pilots is to build an evidence base to determine the benefits for families and the broader justice system, as well as the cost impacts of states and territories exercising increased family law jurisdiction. It is intended that the pilots will conclude on 30 June 2020, and will be independently evaluated. The outcomes of the evaluation will then be considered alongside the findings of the Australian Law Reform Commission review into family law (currently due to report 31 March 2019) and will inform the broader roll out of the Act.
What does this mean for Queensland courts now?
At this time Queensland is not one of the pilot jurisdictions and will not be included in the regulation.Queensland will watch with interest the outcome of the pilot and Australian Law Reform Commission review.
As to the remaining amendments to the FLA, of note for Queensland Magistrates is the amendment to s.68R. This removes the 21 day time limit on the revival, suspension and variation of family law orders. Prior to the amendments, when exercising jurisdiction under s.68R FLA to revive, vary, or suspend a family law order when making a temporary protection order in proceedings under the Domestic and Family Violence Protection Act, s.78 (to ensure the temporary protection order is not inconsistent with an existing family law order), the parties only had 21 days to bring the matter before the Family Court for a parenting hearing. The amendment removes this 21 day time limit, and provides that the revived, varied or suspended family law order ceases to have effect when the temporary protection order ceases or on a date specified in the order.
An information sheet has been prepared by the Commonwealth Attorney-General's Department which can be accessed here:Material for Judges: Key changes to the Family Law Act 1975 under the Family Law Amendment (Family Violence and Other Measures) Act 2018
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The Impact of DFV on ChildrenAustralia’s National Research Organisation for Women’s Safety (ANROWS)16 August 2018ANROWS has recently produced a summary research report on the Impacts of DFV on Children. The report outlines the major issues identified in the ANROWS research projects from 2014 to 2017 relevant to children, factors preventing effective service delivery, and policy and practice changes recommended by researchers. Read it here. Review of the Family Law System: Issues and OpportunitiesProfessor Helen Rhoades
27 July 2018Presentation to the Australian Institute of Family Studies 2018 conference.Link to presentation here.Understanding Domestic Violence Incidents Using Crime Script AnalysisAustralian Institute of Criminology
Sept 2018
This study aims to determine whether crime script analysis could be used to better understand domestic violence incidents with a view to identifying potential situational responses to prevent and de-escalate domestic violence. Crime script analysis involves the identification and analysis of sequential stages of the commission of the crime. The results provide new insight into the situational factors present when arguments escalate to violence, which can help inform appropriate responses to domestic violence.Read report here
The Justice Project, Final ReportLaw Council of Australia
August 2018
The Justice Project is a national, comprehensive review into the state of access to justice in Australia for people experiencing significant disadvantage. The report examined 13 priority groups identified as facing significant social and economical disadvantage, including people who experience family violence. The recommendations provide a “roadmap for future action, building the case for new, whole-of-government justice strategies secured by appropriate funding.”Access the report here
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* Links to pages on Magistrates Intranet & other pages that are not publicly accessible.
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From the Chief Magistrate's Desk:
Issue One
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From the Chief Magistrate's Desk:
Issue Two
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