Who shall be granted a Protection Order? Cross Application in Domestic Violence Proceedings

In 2021, the Women’s Safety and Justice Taskforce heard that cross applications were being used by perpetrators as a means of continuing to control and intimidate victims, resulting in domestic violence orders being made against victims.

In response to the Taksforce’ recommendations, the Domestic and Family Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 made amendments requiring applications and cross applications to be heard together, the court to identify the person most in need of protection in the context of the relationship as a whole and only one DFV order to be made unless there are exceptional circumstances and clear evidence that both persons are in need of protection from the other. (section 4(2)(e)).

New s22A provides guidance for determining who is the “person most in need of protection” and mandatory consierations in making that determination.

Person most in need of protection

In circumsntances where there are conflicting allegations of domestic violence or indications that both persons are committing acts of violence, including for their self-protection:

• the person who is most in need of protection in the relationship should be identified; and

• only one domestic violence order protecting that person should be in force, unless, in exceptional circumstances, there is clear evidence that each person is in need of protection from the other.

Determining the person most in need of protection

A person, who is in a relevant relationship with another person, is the “person most in need of protection” in the relationship if, when the behaviour of each person is considered in the context of their relationship as a whole (s22A(1)):

• the behaviour towards the first person is more likely than not to be (i) abusive, threatening or coercive; or (ii) controlling or dominating and causing them to fear for their safety or wellbeing (or that of another person or an animal); or

• the first pereson’s behaviour towards the other person is, more likely than not (i) for their self-protection or that of a child, another person or animal, or (ii) in relation to the other’s persons’ behaviours twoards them (or a child, another person or animal), or (iii) attirutable to the cumulative effect of the other preson’s domestici violence towards them.

In deciding the person most in need of protection , the court must consider:

• the history of the relationship and domestic violence between the parties;

• the nature and severity of the harm caused to each other;

• the level of fear experienced by each person because of the other’s behaiour;

• which person has the capacity to seriously harm the other; or to control or dominate the other and cause them to fear their safety or wellbeing (or that of their child, another person or an animal);

• whethe the parties have characteristics that may make them particularly vulnerable to domestic violence.

Reference:

Domestic and Family Violence Protection Act 2012 (QLD)

Domestic and Family Violence Protection Act 2012 (QLD) Benchbook