Queensland Law Society

Improve your understanding

Develop and maintain your own knowledge of the social context of domestic and family violence, including power, control and gender

Continually update your knowledge about the current research on domestic and family violence, acknowledging the impact of power and control and not just a focus on physical violence.27

Attend relevant continuing professional development opportunities to keep your knowledge base current.28

Engage report writers and professionals who have knowledge about the current sociological, psychological and legal perspectives explaining domestic and family violence, and have appropriate safe physical environments to conduct interviews for assessments.

Continually update your knowledge about the legal processes about domestic and family violence including the definition of domestic and family violence.

Understand that the impacts of domestic and family violence on a child are not confined only to violence the child has actually witnessed, but also extends to what the child has heard and what they have witnessed of the after effects of violence.

Be aware that some people are more vulnerable to domestic violence.29

Make sure you know about the law so you can give considered advice

Practice points:

Acknowledge that domestic and family violence is a crime, whether it happened in public or in private.

Make the distinction between the civil and criminal ramifications of a domestic violence order and give the client accurate and realistic information about their options to address domestic and family violence, both criminally (make a complaint to police) and civilly.

Inform the client about what to expect in the court process, including the format of hearing and the timing of getting a result.

Make the client aware of Section 151 Domestic and Family Violence Protection Act 2012 about restriction on perpetrators cross-examining witnesses.30

Inform the client how to apply for a domestic violence order under the Domestic and Family Violence Protection Act 2012 or how to make a complaint to the police under the Criminal Code Act 1899.

Consider whether any other causes of action are established, such as a personal injuries claim, and ensure you are clear with the client on what you are retained to do and refer to another professional where appropriate.

Be aware of your ethical obligation not to undertake work in which you do not have adequate competence. Refer to rules 4.1.3 and 5 of ASCR.

When acting for perpetrators:

The Work Health and Safety Act 2011 places obligations on an employer to consider the safety of a victim while in the workplace (for example, where a perpetrator might try to enter the workplace to threaten the safety of the victim – this often happens where a victim has left the family home, but is still attending work).

Provide clients where there is cogent evidence about them perpetrating domestic and family violence with referrals to relevant behavioural change programs.31

Give the client accurate and realistic legal advice about the potential criminal and civil consequences of domestic and family violence and the distinction between the civil and criminal ramifications of a protection order.

Advise the client of all potential consequences, for now and the future, of committing domestic and family violence.

Advise the client of the consequences of providing false evidence.

Provide thorough legal advice about court processes, the client’s options for consenting ‘without admissions’ or responding to protection order applications and the possible outcomes of their options.

Make the client aware of the limitations of their cross-examining a victim if they are not legally represented.32

Explain to your client that an adverse finding made by the court at a domestic violence order hearing can have consequences on other legal matters they may have.

Provide legal advice about what constitutes a breach of a protection order and how they are prosecuted.

Provide legal advice about the implications of a domestic violence protection order being made against your client, for example, the restriction on holding a weapons licence and effect on existing and future employment prospects, or if a work email or telephone is used to harass a victim which may be in breach of their workplace Code of Conduct.

When preparing material for a court hearing ensure all domestic and family violence allegations are investigated

Practice points:

Identify if the client has any protection orders and if there have been any breaches and document it on the file.

Attach the protection order and the application to the affidavit material.

Ensure you know the court’s processes ie Include information about all of the allegations in the mandatory [Form 4] Notice of Child Abuse, Family Violence or Risk of Family Violence (Family Court)33 or Notice of Risk (Federal Circuit Court)34 and affidavits in family law matters.

Even if domestic and family violence does not become an issue at the initial interview, the possibility that it has occurred should be kept in mind at all stages – the client may not feel comfortable to reveal their history at the first interview.

Be aware that clients may not reveal history of abuse at first and develop skills to facilitate full and frank disclosure. This does not extend to ‘putting words into their mouth’.

Collect appropriate police reports, medical reports and statements from witnesses.

Consider what electronic evidence may be available from mobile phones, emails and social media.

Consider the importance of information available from the Department of Communities, Child Safety and Disability Services including any investigation conducted.

Consider any information provided by your client and whether advice should be provided to make a notification with the Department of Communities, Child Safety and Disability Services.

Discuss with the client the need to protect existing evidence and the need to gather evidence in the future – visiting GPs, obtaining photographs, keeping diaries and contact details for potential witnesses.

Consider evidence about any child who has experienced domestic and family violence, potentially having negative impacts on their development as a result of living in chronically fearful situations.

Make your client aware of the benefits of being legally represented at all legal events and the options available.35

If a family report is being prepared, consider the qualifications of the expert witness to assess the impact and effects of domestic and family violence on the parties and the children.

Consider whether it is necessary to obtain an independent family violence report (as contemplated in the Family Violence Best Practice Principles of the Family Law Courts36 p.13 at xviii).

When briefing an expert witness to prepare a family report or social assessment report, give consideration to the directions to be provided to the expert and refer to suggested directions in the Family Violence Best Practice Principles of the Family Law Courts.

When acting for perpetrators:

Focus on specific behaviours the client says occurred and tell them why the behaviours are or are not considered domestic and family violence.

Provide specific examples of the client’s behaviour from information they have provided and how it could be domestic and family violence.

Provide information to your client about steps they can take to change their behaviour.

Provide legal advice to your client about the impact of their acknowledging their behaviour and willingness to take steps to change, and provide referrals to them to assist in taking those steps.

Ensure that you are not complicit in enabling your client to use court processes to further perpetrate domestic and family violence on the victim.

If possible in court place yourself in the line of sight between the perpetrator and victim to protect your client from any potential allegation of intimidation.

Provide information to your client about the impact domestic and family violence has on children.

27. Taskforce Report refers to extensive research about domestic violence http://www.qld.gov.au/community/documents/getting-support-health-social-issue/dfv-report-vol-one.pdf
28. http://www.dvalert.org.au/Getting-Started/What-is-DV-alert
29. Section 4 Domestic and Family Violence Protection Act 2012 Refer to http://www5.austlii.edu.au/au/legis/qld/consol_act/dafvpa2012379/s4.html
30. For Section 151 Domestic and Family Violence Protection Act 2012 refer to http://www5.austlii.edu.au/au/legis/qld/consol_act/dafvpa2012379/s151.html
31. Refer to http://www.familyrelationships.gov.au/searchpages/GeneralService.aspx?ResourceId=3319 for programs available
32. For Section 151 Domestic and Family Violence Protection Act 2012 refer to http://www5.austlii.edu.au/au/legis/qld/consol_act/dafvpa2012379/s151.html
33. http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/forms-and-fees/court-forms/form-topics/Family+Violence/form-nchild-abuse
34. http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/forms-and-fees/court-forms/form-topics/Family+Violence/form-nchild-abuse
35. Refer to QLS Find a Lawyer http://www.qls.com.au/For_the_community/Find_a_solicitor
Legal Aid Queensland http://www.legalaid.qld.gov.au/Home or
The Queensland Association of Independent Legal Services provides links to Community Legal Centres at http://www.qails.org.au
36. http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/policies-and-procedures/ family-violence-best-practice-principles-december-2015