The Queensland Government has recently introduced to parliament the Domestic and Family Violence Protection and Other Legislation Amendment Bill 2016 (Qld).
This proposed legislation would significantly change Queensland’s current domestic violence regime. Notably, Magistrates considering an application for a domestic violence Order will be obliged to:
- have regard to any family law Order of which they have notice and to consider whether that family law Order should be altered; and
- make domestic violence Orders of 5 years’ duration unless there are reasons to impose a shorter term.
The Queensland Magistrates Court has had the discretion to amend family law Orders when making domestic violence Orders for many years now. However, in practice, it was a power that was rarely exercised.
The new provisions require the Court to both have regard to any family law Order of which it is aware and, if it allows contact between a child and a respondent which might be restricted by the proposed domestic violence Order, to also consider whether the family law Order should be amended.
Magistrates are frequently asked to make domestic violence Orders on an urgent, ex parte basis (that is, without the respondent being present). If this Bill is passed, a Magistrate could significantly alter a family law Order without the respondent having had the opportunity to present their side of the story, or indeed any of the evidence relied upon by the family law court in making the family law Order.
Of course, a party to a family law Order which is amended by a Magistrate in domestic violence proceedings can then apply to the family law courts to reverse the Magistrate’s amendment of the family law Order. However, it may take some months before such an application is heard given the current delays in the family law courts.
The extended standard length of domestic violence Orders (from two to five years) could also cause significant issues for respondents. This is particularly so where the parties to that Order, as is common, are also required to negotiate children’s arrangements for many years afterwards.
Over a period of five years, the circumstances of parties to a domestic violence Order (and those of their children) are likely to change significantly. Managing the interaction between a domestic violence Order and a family law Order in light of those changed circumstances over such a period will be a complex task.
These amendments are designed to better protect those in need of protection from domestic violence. However, if implemented, there will also be significant consequences for respondents to domestic violence Orders which could affect them for many years into the future. In short, it will become more important than ever for respondents to seriously consider how they respond to and resolve applications for domestic violence Orders.