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Proctor : October 2015
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23 PROCTOR | October 2015 Domestic violence by the rules What you need to know Amendments to the Domestic and Family Violence Protection Act 2012 (Qld) and the introduction of the Domestic and Family Violence Protection Rules 2014 have numerous implications for practitioners. Gavin Lai and Tina Boules discuss the objectives and practical application of the changes. Application and objectives On 28 February 2015, the Queensland Parliament, pursuant to the Magistrates Courts Act 1921 (Qld), introduced a set of rules known as the Domestic and Family Violence Protection Rules 2014 (Qld) (the rules). The rules were created as a result of amendments made by the Justice and Other Legislation Amendment Act 2013 (JOLA Act) and, in particular, by Part 15 of the JOLA Act which repeals the application of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) to all domestic and family violence protection proceedings (except appeals). Not all rules under the UCPR applied to the Act, so navigating between the UCPR and the Domestic and Family Violence Protection Act 2012 (Qld) (the Act) became confusing and difficult, particularly for self- represented litigants. No doubt, an aggrieved person is already in a difficult place when he or she is applying to obtain a domestic violence order (a protection order) against a respondent. The implementation of the rules for domestic and family violence proceedings seeks to: a. reduce the confusion and stress experienced by litigants b. enhance the efficiency of court and registry processes c. in turn, improve access to justice for parties. 1 The key features of the rules include: a. avoiding unnecessary burdensome procedural requirements (some of which are noted below) b. the use of form and language that is easily understood by parties (particularly non-lawyers) c. consistency in process, because having certainty of requirements ensures consistency d. efficiency and timeliness in the resolution of applications brought before the court, because having certainty of requirements also ensures efficiency and timeliness. At first instance, the implementation of the rules appear to be beneficial to self- represented litigants and practising lawyers. Application The rules apply to proceedings in a Domestic and Family Violence Protection Court (DFVP court) under the Act, except for appeals under the Act. 2 Objects The main purpose of the rules is to ensure that a DFVP court decides proceedings in a way that:3 a. is consistent with the Act b. resolves a proceeding in the most cost-effective way c. facilitates the just and expeditious resolution of the issues relevant to the proceeding. The rules are also intended to provide for the practice and procedure of a DFVP court for a proceeding. A DFVP court is required to apply the rules to ensure that undue delay, expense and technicality are avoided and the objects of the rules are facilitated. 4 Failure to comply As is the case with the UCPR,5 failure to comply with the rules does not necessarily (or automatically) mean that a proceeding, document, step taken or order made in a proceeding is ‘null and void’. Instead, it will be considered an “irregularity”6 and a DFVP court can decide what this irregularity will mean. For example, a DFVP court may make an order which deals with a failure to comply if appropriate, 7 such as: a. set aside all or part of the proceeding or an order made in the proceeding b. declare a document or step taken to be ineffectual or effectual, or make another order. Additionally, if a rule is inconsistent with the main objects of the Act (or the principles for administering the Act), a DFVP court can waive compliance with the rule, or excuse non-compliance. What the rules cover In particular, the rules address the following pertinent matters: Filing documents and change of address for service or email The rules provide how DFVP applications and change of address for service or email are to be filed. In particular, which court to file in and how filing is effected.8 As per the UCPR, filing may occur by hand-delivering the document to the registry or sending by post, and a police officer may file a document electronically.9 Family law back to contents
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