Litigating Domestic & Family Violence Protection Proceedings

Transcription

1 Litigating Domestic & Family Violence Protection Proceedings Andrew Anderson Purpose of Paper The purpose of this paper is threefold. First, it is to provide practitioners with a broad overview of proceedings pursuant to the Domestic and Family Violence Protection Act 2012 (Qld). Second, it designed to provoke thought as to how the operation of the sections can be utilised throughout the litigation process to the advantage of the client, particularly a respondent to the proceeding. Third, it is to highlight issues that may be relevant to the effective advocacy in a proceeding, particularly for a respondent, at the various points of litigation. It will take account of the legislative scheme, rules of evidence and the types of orders available under the Act. Contents I Introduction.2 II Objects and Principles of the Act..13 III Procedural Considerations.05 A Form of Evidence...05 B Directions...6 C Reduced Cost in Issuing Subpoenas...6 D Written Submissions and Draft Orders.6 IV Advocacy for the Respondent. 7 A Assessment and Management of Risk.7 B Negotiated Settlements...7 C Consent Orders.8 D Temporary Protection Orders.8 E Protection Orders.9 F Costs 10 V Appeals..11 VI Conclusion.11 VII Annexure: Brief Checklist for Respondents.12 Andrew Anderson, Partner, Boe Williams Anderson. He has experience in cases involving domestic violence, including the prosecution of trials concerning serious violence and homicide arising out of domestic relationships. He has also appeared as junior counsel in the High Court of Australia in an appeal relating to the use of evidence of prior domestic violence in criminal trials in Queensland: Roach v The Queen (2011) 242 CLR aanderson@boewilliamsanderson.com.au

2 I Introduction The Domestic and Family Violence Protection Act 2012 (Qld) ( the Act ) commenced on 17 September It replaced the Domestic and Family Violence Protection Act 1989 (Qld) ( the repealed Act ). According to the Explanatory Notes, Parliament had a number of objectives in mind in passing the Act. Significantly, it sought to broaden the definition of domestic violence 1 and the standing of people eligible to invoke the legislative protections, as well as strengthen the powers of courts to make appropriate orders. The widened scope of the legislation may be seen as a positive. One of the motivations for the changes to the legislative regime was to address the continued prevalence of domestic violence in the community. 2 That general sentiment should not overwhelm the considerations of lawyers engaged to represent a respondent in an individual case. While the making of an order is civil in nature, breaching the order carries consequences under the criminal law. As such, it is important that lawyers guard against the legislation being used in a way that results in unnecessary and undesirable orders being made. P 2 of 13 Advocacy can play an important role in the outcome of cases of this kind. Successful litigation will involve a thorough understanding of the legislation, operation of the rules of evidence and procedure, as well as the case of both the applicant and the respondent. The first part of this paper calls to attention some of the important legislative provisions and their context in the wider scheme of the legislation. In litigating a case under the Act, certain steps can be undertaken by a respondent during the process to affect the outcome. For that reason, lawyers need to adjust their advocacy on the case by reference to each stage of the proceeding and how that may affect future decisions by the court. In a proceeding under the Act, a court is not bound by the rules of evidence. Nevertheless, it remains a central task of an advocate to understand what evidence will be adduced in the case and how any such evidence can be adduced most persuasively. Lawyers should be mindful of the reduced expense of the use of subpoenas in proceedings under the Act, which can assist in obtaining independent evidence to support a case. There are various types of orders that a court can make at different points, which need to be borne in mind by lawyers acting for a respondent. Depending on the prospects of a case and the situation of the client, it might be advantageous to seek a negotiated settlement of the case out of court, or simply consent to a domestic violence order being made by the court without further findings as to acts of domestic violence having occurred. For the advocate appearing for a respondent to a proceeding under the Act, understanding the way the litigation is best conducted for the client and how that may affect the ultimate outcome is central. At every hearing or mention in court, a lawyer will have an outcome that is sought by the client. The Magistrates Court is generally a busy jurisdiction with minimal formality, so taking account of how to most effectively persuade the court to a particular outcome requires attention to different forms of advocacy and their advantages and disadvantages. The paper will highlight some relevant issues in this regard, including the assistance that written submissions and draft orders can make in the Magistrates Court. 1 2 Explanatory Notes to the Domestic and Family Violence Protection Bill 2011 (Qld). Explanatory Notes to the Domestic and Family Violence Protection Bill 2011 (Qld).

3 II Objects and Principles of the Act Domestic violence laws may be viewed as an adjunct to the criminal law. 3 The criminal law, however, is principally concerned with holding individuals to account for conduct that has already occurred. Domestic violence laws, on the other hand, may be understood as being directed towards providing protection against acts that have not already occurred. The Act does make clear these laws work in conjunction with each other, rather than as alternatives. This may be seen in the main objects and principles for administering the Act. The Act sets out its main objects at s.3: 3 Main objects (1) The main objects of this Act are (a) to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives; and (b) to prevent or reduce domestic violence and the exposure of children to domestic violence; and (c) to ensure that people who commit domestic violence are held accountable for their actions. (2) The objects are to be achieved mainly by (a) allowing a court to make a domestic violence order to provide protection against further domestic violence; and (b) giving police particular powers to respond to domestic violence, including the power to issue a police protection notice; and (c) imposing consequences for contravening a domestic violence order or police protection notice, in particular, liability for the commission of an offence. P 3 of 13 For a respondent in particular, it is not be noted that s.3(2)(a) indicates one focus to be on domestic violence orders providing protection against further domestic violence. It may be inferred that this gives some context to the meaning of other words in the Act. For instance, it may inform the meaning of the words necessary or desirable, as used in s. 37(1)(c). However, it is necessary to recognise the history of the legislation before seeking to make too much of that proposition. One of the reasons for the change to the test for making a protection order in the Act passed in 2012 was criticism of the test of likelihood. 4 The principles for administering the Act are detailed in s.4: 4 Principles for administering Act (1) This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount. (2) Subject to subsection (1), this Act is also to be administered under the following principles (a) people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives minimised; (b) perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change; (c) if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics; 3 4 See, for example, Gay Clarke, Domestic Violence and the Law (1990) 4 AJFL 85. Compare the test under the former s.20(1)(b) Domestic and Family Violence Protection Act 1989 (Qld). See also the Australian Law Reform Commission Consultation Papers on Family Violence in 2010.

4 Examples of people who may be particularly vulnerable to domestic violence women children Aboriginal people and Torres Strait Islanders people from a culturally or linguistically diverse background people with a disability people who are lesbian, gay, bisexual, transgender or intersex elderly people (d) in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is most in need of protection should be identified; (e) a civil response under this Act should operate in conjunction with, not instead of, the criminal law. Again the legislative context is important. Although s.4(2)(b) is subject to s.4(1), for a respondent to an application it may be important to highlight perpetrators of domestic violence should be if possible, provided with an opportunity to change. It may be advantageous for a respondent to highlight these objects and principles for administering the Act to advance a proposition with respect to the necessity or desirability of a domestic violence order, or the terms of such an order. P 4 of 13 A further point to note is the relevance of the subjective characteristics of the applicant for a domestic violence order, as may be seen in the examples of s.4(2)(c) of the Act. Vulnerability is a relative concept. As such, there may be subjective characteristics for an applicant or respondent that informs the power dynamic within the relationship. The level of education, independence of living, support network, or other factors may inform whether a person could be particularly vulnerable. For a respondent, it may be important to highlight the subjective characteristics of either the applicant or respondent in a given case, as it is also relevant to the determination in s.4(2)(d). Section 4(2)(d) of the Act was enacted as a response to the improper filing of crossapplications, which were thought to be an extension of the controlling or abusive behaviours that underlie domestic violence. It was intended to harden the approach in this area, as was explained in the Explanatory Notes: [T]he Bill aims to ensure that the person who is most in need of protection is identified. This is particularly important where cross-applications are made, which is where each party to a relationship alleges domestic violence against the other and which often result in cross-orders. During consultation, stakeholders reported a disproportionate number of crossapplications and cross-orders and expressed the concern that in many instances domestic violence orders are made against both people involved. This is inconsistent with the notion that domestic violence is characterised by one person being subjected to an ongoing pattern of abuse by another person who is motivated by the desire to dominate and control them. Both the people in a relationship can not be a victim and perpetrator of this type of violence at the same time. A cross-application may be used by a respondent to continue victimising the aggrieved person, to exact revenge or to gain a tactical advantage in other court proceedings. Also, violence used in self-defence and to protect children can be misconstrued as domestic violence if a broader view of the circumstances is not taken. It is obvious that just as a cross-application can be filed vexatiously or with the effect of further exhibiting controlling or abusive behaviours, so can the filing of an original application. Moreover, there is nothing in the Act that prevents cross-orders being

5 made. As such, it is still important to consider whether a cross-application should be made when acting for a respondent. From these objects and principles, a lawyer preparing to respond to an application for a domestic violence order should at the very least give consideration to the following issues: The subjective characteristics of the applicant and the respondent; The basis on which a court may conclude there is a risk of further domestic violence; The way the respondent may be given an opportunity to change, if possible; and, The basis on which a court may conclude one party is most in need of protection. Whilst the above considerations are by no means exhaustive, it will inform the tact to be used in responding to the application. It will highlight whether there are any deficiencies in the evidence for the applicant, as well as what evidence may need to be adduced for the respondent. This brings into focus the forms of evidence available in a hearing for a domestic violence order that are relevant to how a case may be presented to the court. P 5 of 13 III Procedural Considerations A Form of Evidence For a proceeding under the Act, the rules of evidence are found in s.145: 145 Evidence (1) In a proceeding under this Act, a court (a) is not bound by the rules of evidence, or any practices or procedures applying to courts of record; and (b) may inform itself in any way it considers appropriate. (2) If the court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities. (3) To remove any doubt, it is declared that the court need not have the personal evidence of the aggrieved before making a domestic violence order. The power for the court to inform itself in any way it considers appropriate highlights the significant flexibility attaching to how evidence may be put before it. The ordinary rules of adducing and disclosing evidence governed by Uniform Civil Procedure Rules 1999 (Qld) ( UCPR ) do not apply by virtue of s.142 of the Act. That a court is not bound by the rules of evidence is not to be read as tantamount to it being stated the rules of evidence are irrelevant. The rules of evidence may still be important to a court in the way it informs itself as to the weight to be given to a particular piece of evidence. 5 For instance, evidence that is corroborated may be more readily satisfy the court than evidence that is uncorroborated. Likewise, consistent evidence may be afforded more weight than evidence that contains inconsistency. Given affidavits are commonly used in cases of this nature, attention should be paid to their quality. An example of a respondent having the affidavits prepared used adversely to his case may be seen in Armour v FAC [2012] QMC 22. In that case, affidavits relied on by the respondent were used by the Magistrate to support a conclusion that the aggrieved had been suborned to give false evidence by the respondent. 6 In conjunction with other findings, it led to the application for a protection order succeeding. 5 6 As may be observed in the detailed judgment by Magistrate Costanzo in Armour v FAC [2012] QMC 22. Armour v FAC [2012] QMC 22.

6 All lawyers should realise the disadvantages created by poorly drafted affidavits. It can expose the witness to unnecessary cross-examination, unnecessarily lengthen and complicate preparation and court time, as well as distracting the court from the real issues to be decided. It must be remembered that many of the ordinary rules of civil litigation do not necessarily apply. The relevance of the UCPR is confined to the provisions spelt out by s.142 of the Act. As such, the flexibility attaching to the way evidence may be received in a proceeding under the Act renders it necessary for a lawyer to consider not only what evidence should be adduced, but how it may be adduced most persuasively to the court. B Directions The court can give directions pursuant to s.144 of the Act. That could relate to such matters as the forms of evidence, exchange of affidavits or expert reports. There are a number of other obvious areas that could be appropriately the subject of directions before a hearing: Leave to call evidence of a child (s.148); Whether protected witnesses require any orders pursuant to s.150(2); Seek the court to issue a subpoena requiring the attendance of a person (s.154); Whether a support person nominated by the aggrieved is appropriate (s.158(3)); and, Whether any witness is a special witness pursuant to s.21a Evidence Act 1977 (Qld). P 6 of 13 Given practice and procedure is so flexible under the Act, consideration of how any directions that may be issued by a court could assist in the preparation of the case for the respondent is essential. C Reduced Costs in Issuing Subpoenas The Act contains provisions that assist in gathering or obtaining evidence to support the case. Relevantly, Chapter 11, Part 4 of the UCPR applies with the exception Rules 417, 418 and 419. That Part has regard to subpoenas to produce and call evidence. The excluded rules of that Part dispenses with the costs a party may bear in issuing a subpoena. The reduced costs in issuing subpoenas gives added reason for lawyers to actively consider whether there are any records or witnesses that may assist the case for their client. D Written Submissions and Draft Orders Written submissions and draft orders provides advantages for both the advocate and the court. For the advocate, written submissions typically focus the mind on the essential points to be made and increase the likelihood of all relevant issues being covered. For a court, especially a court as busy as the Magistrates Court, written submissions will mean the court has an easily accessible record of those essential points and are therefore more easily considered in the course of framing the reasons for a decision. Written draft orders, likewise, concentrate the mind of the advocate as to the precise order sought and why. 7 7 See a similar sentiment with respect to understanding the orders sought on appeal expressed by French CJ, Appellate Advocacy in the High Court of Australia, speech delivered to the World Bar Conference, 29 June 2012, Supreme Court of the United Kingdom, London.

7 IV Advocacy for the Respondent A Assessment and Management of Risk The task of the advocate is to seek to utilise each stage of proceedings to the advantage of the client, so far as it can be achieved within the framework of the Act. Ultimately, if the application is contested, the object will likely be to show why a protection order is not necessary or desirable 8. A lawyer who considers how the course of litigation may affect the advocacy of the case at the final hearing may be better placed to oppose the grounds of the application than one who does not. The threshold for finding whether it necessary or desirable to make a protection order is deliberately not a high bar for an applicant to overcome. As Magistrate Costanzo recognised in Armour v FAC, it is a protective jurisdiction that involves risk assessment and risk management. For that reason, lawyers appearing for a respondent ought to devote considerable attention to answering how the respondent presents in relation to those two issues and how that may change by different factors. P 7 of 13 The assessment of risk will be informed by include factors such as the gravity of the domestic violence, whether it is a repeated or isolated occurrence, and if it has occurred in an exceptional or everyday context. The greater the likelihood of harm and the frequency of the behaviour will obviously bear on the assessment of the risk. Both the assessment of risk and how it may be managed can be affected during the course of litigation. Armour v FAC shows an example of the effect a negative effect in that case actions during the course of litigation can have on the ultimate conclusions of a court. It does highlight however that a respondent can take steps through the course of the litigation that can be taken into account in considering the necessity or desirability to manage the risk. Actions that may be viewed in favour of a respondent in this regard may include: Voluntarily attending mediation or counselling with the aggrieved (if appropriate); Voluntarily participating in programs designed to address domestic violence; Demonstrations of remorse, changes in behaviour, values and attitudes. Attending mediation, counselling or other programs for the cynical reason of merely seeking to avoid a domestic violence order will, for good reason, likely fail to impress a court. It would not demonstrate a genuine desire to understand the domestic violence and seek to change that behaviour. However, genuine engagement with such a process in a given case may be expected to be a factor weighing against the necessity or desirability of a domestic violence order. In each stage of the proceeding, there are things that an advocate may be able to point to in order to advance the case for a respondent. B Negotiated Settlements A negotiated settlement will obviously not be appropriate in all cases. A negotiated settlement of the dispute outside of court is not an order of the court, though in the ordinary course a respondent would seek as a condition of any settlement the withdrawal of the application for a domestic violence order. There are a number of advantages for a respondent by this course. It may see the aggrieved undertake to withdraw the application, ensuring the respondent is not 8 See 37(1)(c) of the Act.

8 exposed to the possibility of breaching a court order. It may save on the cost of litigation. It may assist in the reparation of the relationship between the respondent and the aggrieved in the future. The difficulty that may confront a respondent will be if there is a breach of the voluntary undertaking by any other act of domestic violence, it may be more difficult to persuade a court it is neither necessary or desirable for a domestic violence order to be made. It is important to recognise that notwithstanding any private agreement that may be made personally between an aggrieved and a respondent, it is possible the application will still proceed at the behest of the Queensland Police Service. As such, a negotiated settlement may not in all cases see the application withdrawn. Nevertheless, a settlement may be something that will bear on the necessity or desirability for a domestic violence order. C Consent Orders P 8 of 13 The advantage of a consent order to a respondent is to be found in the findings that do not have to be made by the court, provided the respondent is not a child: 51 Court may make domestic violence order by consent (1) If the parties to a proceeding for a domestic violence order, or a variation of a domestic violence order, consent to the making of the order, or do not oppose the making of the order, the court may make the order (a) if the court is satisfied that a relevant relationship exists between the aggrieved and the respondent; and (b) without being satisfied as to any matter mentioned in (i) for a proceeding for a protection order section 37(1)(b) or (c); or (ii) for a proceeding for a temporary protection order section 45(1)(b); and (c) whether or not the respondent admits to any or all of the particulars of the application. (Emphasis added) In circumstances where an application for a temporary protection order has strong prospects of succeeding, there may be some benefit in consenting to the order. This may provide a number of forensic advantages to a respondent. It may assist in negotiating with the applicant to restrict the conditions to attach to an order that may be otherwise sought beyond the standard conditions. Moreover, it can be later used to indicate to a court the respondent has cooperated with the process and, combined with other changes to behaviour, may ultimately assist in persuading a court that it is not necessary or desirable for a protection order to be ultimately made. D Temporary Protection Orders For a court to make a temporary protection order, it must be satisfied: 45 Matters court must be satisfied of (1) A court may make a temporary protection order against a respondent only if the court is satisfied that (a) a relevant relationship exists between the aggrieved and the respondent; and (b) the respondent has committed domestic violence against the aggrieved. (2) Subsection (1) does not apply if the court makes a temporary protection order under section 44(b). The standard of evidence for temporary protection orders is specifically stated at s.46:

9 46 Standard of evidence A temporary protection order need only be supported by the evidence that the court considers sufficient and appropriate having regard to the temporary nature of the order. For a respondent, it is essential to note that there is nothing that compels a court to make a temporary protection order even if it is satisfied of the matters in s.45. The language that a court may make the order implies a residual discretion. In a case where a respondent seeks to resist a temporary order and is left to rely on this residual discretion, it will be necessary to clearly advocate that position by reference to the objects and principles for administering the Act. However, it might be expected that given the protective jurisdiction within which the court is operating, an advocate left only with that argument would face an uphill battle. Successfully resisting a temporary protection order for a respondent can be forensically very advantageous if the application proceeds to a hearing for a protection order. It can allow the respondent an opportunity to show the court what his or her behaviour is like without a domestic violence order being in existence, which may be afforded some weight as to whether it is ultimately necessary or desirable for a protection order to be made. P 9 of 13 In the event a client has a temporary protection order made against them, it may be appropriate to consider whether a voluntary intervention order 9 should be sought on behalf of the respondent. Compliance with a voluntary intervention order may factor positively in favour of a respondent in resisting the necessity or desirability for a protection order. On an ex parte application, a court must be additionally satisfied the temporary protection order is necessary or desirable. Obviously, on such a hearing a respondent is unable to make submissions to the contrary. It is possible to appeal such an order under s.164 of the Act. E Protection Orders A court may make a protection order against a respondent pursuant to s.37 of the Act: 37 When court may make protection order (1) A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that (a) a relevant relationship exists between the aggrieved and the respondent; and (b) the respondent has committed domestic violence against the aggrieved; and (c) the protection order is necessary or desirable to protect the aggrieved from domestic violence. (2) In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence, the court (a) must consider the principles mentioned in section 4; and (b) may consider whether a voluntary intervention order has previously been made against the respondent and whether the respondent has complied with the order. (3) If an application for a protection order names more than 1 respondent, the court may make a domestic violence order or domestic violence orders naming 1, some or all of the respondents, as the court considers appropriate. 9 See Part 3, Division 6 Domestic and Family Violence Protection Act 2012 (Qld).

10 Given the definition of domestic violence in s.8 incorporates as an element there being a relevant relationship, it is difficult to see what is added by s.37(1)(a). It would seem to be incorporated in the findings that are necessarily made in s.37(1)(b). The important point for a respondent, however, is that simply finding that the respondent has committed domestic violence against the aggrieved is not enough. The order has to also be necessary or desirable to protect the aggrieved from domestic violence under s.37(1)(c). The implication is that the legislation contemplates cases where there is a finding of domestic violence having occurred, yet it not being necessary or desirable for an order to be made. 10 Although some context for the words necessary or desirable may be derived from ss. 3 and 4 of the Act, further context may be found in the Explanatory Notes: The Bill replaces the likelihood element with a requirement that a court be satisfied that an order is necessary or desirable to protect an aggrieved from domestic violence. This change focuses the court on the protective needs of the aggrieved and whether imposing conditions on the respondent s behaviour is necessary or desirable to meet these needs. The court may still consider evidence which suggests that domestic violence may occur again, or a threat may be carried out, however the court does not need to be satisfied that such an event is likely. Further, a court can look at other factors, including whether an aggrieved is in fear, when it is determining this element. P 10 of 13 The Act clearly was seeking to extend the relevant considerations to allow a court to make a protection order. The difference may well be determinative to some cases. It is questionable whether the result in W v D [2008] QDC 110, for instance, would be the same having regard to the new test of an order being necessary or desirable. F Costs The statutory norm is that a party bears their own costs in a proceeding. However, a court retains discretion to award costs for an application that is dismissed for being malicious, deliberately false, frivolous or vexatious: 157 Costs (1) Each party to a proceeding for an application under this Act must bear the party s own costs for the proceeding. (2) However, the court may award costs against a party who makes an application that the court hears and decides to dismiss on the grounds that the application is malicious, deliberately false, frivolous or vexatious. (3) In this section party includes an aggrieved. In a case where an application is malicious, deliberately false, frivolous or vexatious, costs should be sought for the respondent. The party who makes the application should be informed that it is intended costs will be sought if the court dismisses the application. This will ensure the court does not become concerned that the applicant is taken by surprise as to this issue. In cases where the proceeding is brought for an ulterior purpose, such as to simply gain leverage in child sharing negotiations or an advantage in family law proceedings, an award for costs should be considered. The administration of justice is not served by the use of proceedings for an ulterior purpose, particularly where the existence of an 10 See SCJ v ELT [2011] QDC 100 at [21] per McGill DCJ. Although the observations were made with respect to the repealed Act, they still have obvious relevance to the Act.

11 order gives rise to possible penal consequences. Moreover, vexatious or malicious claims adversely affect the standing of this law in the community, which is unfair to those individuals who legitimately require it for their protection. V Appeals The powers of an appellate court 11 are set out in ss of the Act. The decisions that can be appealed against are set out in s.164: 164 Who may appeal A person who is aggrieved by any of the following decisions of a court may appeal against the decision (a) a decision to make a domestic violence order; (b) a decision to vary, or refuse to vary, a domestic violence order; (c) a decision to refuse to make a protection order. It is to be noted there is no power for an applicant to appeal against a refusal to make a temporary protection order. Effectively, any order made against a respondent can be the subject of an appeal. In litigating an appeal, consideration needs to be given to the hearing procedures in s.168: 12 P 11 of Hearing procedures (1) An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed. (2) However, the appellate court may order that the appeal be heard afresh, in whole or part. How the appellant will wish the court to proceed on appeal will largely be determined by what errors are identified and if any evidence is being challenged. The power for the court to order that the appeal be heard afresh may be of assistance where findings of fact are being challenged, especially given the deference appellate courts ordinarily give to the advantaged position of a primary court in that regard. VI Conclusion The protective nature of the legislative scheme may inform how specific provisions are interpreted. However, as has been observed, there are objects and principles stated in the Act that may, in a given case, be favourably invoked for the respondent. It highlights the need for a thorough understanding of the legislative scheme, including its operation and procedure. In a protective jurisdiction, issues relevant to the assessment and management of risk will be central to the outcome. Behavioural and lifestyle changes that may occur during the litigation process can affect the outcome, either positively or negatively for a party. As such, it is the task of any lawyer engaged to act in a case under the Act to constantly consider the issues as they may arise so as to put their client in the best possible position at every point. The effective preparation and consideration of these matters is the key to the effective advocacy throughout the litigation process. 11 See Schedule 2 of the Act: appellate court means (a) for a decision made by the Magistrates Court, or the Childrens Court constituted by a Childrens Court magistrate or a magistrate the District Court; or (b) for a decision made by the District Court, the Supreme Court, or the Childrens Court constituted by a District Court judge the Court of Appeal. 12 Compare the nature of appeal under the repealed Act s.65.

12 Brief Checklist for Respondents The Application Does the application comply with s.32? Can there be a negotiated settlement of the application that will see it withdrawn? Does the time for the hearing allow the respondent sufficient time to prepare? (No) (No) Consider whether to move to have the application dismissed. See applicability of s.142 of the Act: s.13 UCPR incorrectly started as claim s.32 UCPR oral applications permitted Negotiate a settlement and any voluntary undertakings on behalf of the respondent Seek to adjourn the hearing to a later date pursuant to s.38(2)(a) Instructions Is there scope for the application to be withdrawn so as to avoid the need for court orders? Do the instructions of the respondent require a cross-application to be made to the original application? Have instructions been taken about matters that must be considered by the court (if relevant)? Is there is a child of the aggrieved or usually lives with the aggrieved? s.54 o If information from the chief executive may assist the respondent s.55 Has the application disclosed any relevant family law orders? s.77 Weapons matters? s.80 Is it necessary to subpoena anything or anyone to support the case for the respondent? Does the respondent consent to any form of domestic violence order? (No) Negotiate a settlement and any voluntary undertakings on behalf of the respondent File a cross-application that complies with s.32. Consider whether it should be heard at the same time as the original application as allowed by s.41. Obtain instructions and, if necessary, subpoena or seek directions in relation to the information. Issue subpoenas and if necessary obtain a direction from the court for anything arising from it. Obtain a consent order that complies with s.51. Determine whether it is made without admissions. P 12 of 13 Directions Does the respondent seek any directions for the hearing of the protection order? Consider: What will the direction achieve? Are there alternatives to seeking a direction? Does the applicant agree or consent to the direction sought by the respondent? At what point is it most advantageous to the client to seek a direction? Seek directions pursuant to s.142, including for instance: Time for the filing of affidavits; Leave to inspect or copy subpoenaed material; Leave to call evidence of a child (s.148); Whether protected witnesses require any orders pursuant to s.150(2); Seek the court to issue a subpoena requiring the attendance of a person (s.154); Whether a support person nominated by the aggrieved is appropriate (s.158(3)); Whether any witness is a special witness pursuant to s.21a Evidence Act 1977 (Qld).

13 Temporary Protection Orders If a temporary protection order has already been made, is there a need to have any condition of the order varied? (consider also whether to appeal) If a temporary protection order is made by a court, is the respondent prepared to agree to a voluntary intervention order? If a temporary protection order is to be made by a court, are any orders beyond the standard orders sought by the applicant? Apply for a variation of the temporary protection order pursuant to s.86 Obtain instructions relevant to whether the respondent is likely to satisfy the considerations in s.69(2) and s.72(2). Discretionary orders can be made that are necessary and desirable. Protection Orders If a temporary protection order is made by a court, is the respondent prepared to agree to a voluntary intervention order? If a temporary protection order is to be made by a court, are any orders beyond the standard orders sought by the applicant? Obtain instructions relevant to whether the respondent is likely to satisfy the considerations in s.69(2) and s.72(2). Discretionary orders can be made that are necessary and desirable. P 13 of 13 Costs If the application is dismissed by a court, does the respondent have a basis for seeking an order for costs on the basis the application was vexatious, deliberately false, frivolous or malicious? See for instance Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 at [27]-[28]; Ashby v Commonwealth of Australia (No 4) [2012] FCA In seeking an order for costs pursuant to s.157, consider: What is the precise basis for the claim of costs and what is the proof of it? Was the applicant put on notice about the fact costs would be sought if the application proceeded and was dismissed? Appeals If a domestic violence order is made or varied, are there grounds to appeal? Identify appeal grounds and file a notice of appeal in accordance with the Act: File notice of appeal with appellate court within 28 days (s165) Must serve a copy of the notice on other persons entitled to appeal and the Police Commissioner (s.165(2))