in criminal Law & Offences, Domestic Violence
The laws surrounding domestic violence have changed significantly in the last decade.
An average of 30,000 domestic violence applications [1] were lodged each year from July 2018 to June 2023 [2].
In this series of blogs, we will answer some frequently asked questions with respect to domestic violence laws in Queensland.
PART TWO
My ex took out a DVO against me and I want to engage lawyers to assist me. Can I get any of my legal costs back if I win?
The costs provisions of the Domestic and Family Violence Protection Act were amended in August 2023 to allow costs orders to be made in a wider range of cases. However, there are still very limited circumstances where a person may be awarded costs in relation to domestic violence proceedings. You should talk to your lawyer about the likelihood of getting your costs back at the end of the proceedings.
The starting position is that each party must bear their own costs for the proceedings.
The only circumstances where the Court has power to award costs against the party who made the application is when:
- the Court hears the application and decides either:
- to dismiss the application; and
- in dismissing the application, they decide that the party in making the application intentionally engaged in behaviour, or a continued pattern of behaviour, towards the respondent that is domestic violence;
OR
- in dismissing the application, the Court did so on the grounds that it was malicious, deliberately false, frivolous or vexatious.[3]
This expansion of the costs provisions is designed to capture circumstances of system abuse (also known as legal abuse).
In other words, costs can be awarded against a party where the person has intentionally misused the legal system by starting proceedings based on false allegations or as a way to exert control or dominance over the respondent to the application, or to intimidate, harass or torment that person.[4]
I am the Respondent in DV proceedings. Can any previous orders or my criminal history be taken into consideration?
Since August 2023, police are required to make sure the Court has a copy of the Respondent’s criminal history and domestic violence history at the first court appearance, whether it is an application for a DVO, a Police Protection Notice or an Application to Vary an existing order. [5] If you have no history, the Police must make sure the Court knows that too.[6]
The Court is allowed to take into account your criminal history and/or domestic violence history at various stages of the matter. Whether that be at the time they are making a temporary protection order (TPO), varying an existing order or making a final protection order (DVO). [7] Some times they have to take it into account. Some times it is just another thing they can consider.
The Court can make an order restricting disclosure of your criminal or domestic violence history, and/or an order restricting the Aggrieved’s access to those histories.[8] Say you have a completely unrelated and dated entry on your criminal history, like a shoplifting offence from years ago, the Court can make an order that the aggrieved or the applicant not be told about that.[9]
A “domestic violence history” includes domestic violence orders, recognised interstate orders, NZ orders, and police protection notices[10]. These disclosure obligations include spent convictions. [11] So even if you had an assault on your criminal history from 15 years ago, which is now considered spent, the Court can still take it into account.
If the DV application was made before the August 2023 changes and has not yet been finalised, the Court has the power to request and consider your criminal and/or domestic violence history.
What is substituted service? I got an email from the Police about domestic violence proceedings being commenced against me and I’ve just discovered the matter was dealt with in my absence. Is there anything I can do?
Since 1 August 2023, there are now provisions in the Domestic and Family Violence Protection Act for “substituted service”, but it only applies in limited circumstances.
Generally speaking, the law requires certain documents to be personally served on a respondent by a police officer.
However, they’ve made some exceptions to make sure that requirement for personal service doesn’t hold up court proceedings.
So, if there is a situation where:
- the court is satisfied that the Police have tried to personally serve the document but have been unsuccessful; and
- serving the document another way is necessary or desirable to protect the aggrieved and is reasonably likely to bring the document to the attention of the respondent,
then they can make an order that gives Police another way to serve the document.[12] For example, allowing service by email.
There are restrictions in place regarding substituted service.[13] The Court can be pretty specific about what the Police will need to do and regardless of how they do it, you still need to be given a copy of the document and have it explained to you, unless that’s not reasonable to do in all of the circumstances.[14]
If your documents were served by substituted service and the matter was decided in your absence, you might be able to apply to re-open the court proceedings.[15] A classic example arises if the documents were served to an incorrect email address, and you had no way of knowing. [16] Strict time limits apply for making any such application to re-open your case, so make sure you speak to one of our lawyers as soon as possible.
[1] Queensland Courts’ domestic and family violence (DFV) statistics, available at: DFV statistics | Queensland Courts. The table shows the number of originating applications across Queensland from 2018/2019 financial year to 2022/2023 financial year. The average of those numbers is 29,524.
[2] Over the 2018/2019 financial year to the 2022/2023 financial year.
[3] Domestic and Family Violence Protection Act 2012 (Qld), section 157.
[4] Domestic and Family Violence Protection Act 2012 (Qld), section 157(2)(a).
[5] Domestic and Family Violence Protection Act 2012 (Qld), sections 36A(1), (2) and 90A.
[6] Domestic and Family Violence Protection Act 2012 (Qld), sections 36A(3) and 90A(3).
[7] Domestic and Family Violence Protection Act 2012 (Qld), sections 37, 45 and 91.
[8] Domestic and Family Violence Protection Act 2012 (Qld), section 160A.
[9] Domestic and Family Violence Protection Act 2012 (Qld), section 160A.
[10] Domestic and Family Violence Protection Act 2012 (Qld), Schedule.
[11] Domestic and Family Violence Protection Act 2012 (Qld), section 189A.
[12] Domestic and Family Violence Protection Act 2012 (Qld), section 184A.
[13] Domestic and Family Violence Protection Act 2012 (Qld), section 184A.
[14] Domestic and Family Violence Protection Act 2012 (Qld), section 184A(3), (5).
[15] Domestic and Family Violence Protection Act 2012 (Qld), section 157A.
[16] Domestic and Family Violence Protection Act 2012 (Qld), section 157A(1)(b).
