For families living in fear of domestic violence, changes to the law around restraining orders in WA offer greater protections, writes Tindall Gask Bentley lawyer Kate Major.
The statistics tell an ugly, shameful truth about domestic and family violence in Australia.
- 1 in 5 Australian women, and 1 in 22 men, have experienced sexual violence;
- 1 in 6 women, and 1 in 19 men, have experienced physical or sexual violence from a current or former partner;
- 1 in 4 women, and 1 in 7 men, have experienced emotional abuse by a current or former partner. You can read the full ANROWS report here.
Recognising the need for change, on 17 November 2016, the WA State Parliament passed the Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016 making a number of substantive changes to the Restraining Orders Act 1997, with the aim to better protect victims and the general community against family and domestic violence.
These changes attempt to create a streamlined process for addressing family-related proceedings between the Magistrates Court and proceedings in the Family Court of Western Australia, as well as shift towards a more victim-focused system. . The amended Restraining Orders Act expressly states its aim to maximise victim safety, reduce the incidences of family violence, to protect the wellbeing of children by preventing them from being subjected to or exposed to family violence and making perpetrators of family violence accountable to the court.
A New Kind of Restraining Order
The new kind of restraining order created by the amendment acknowledges the fact that family violence often constitutes more than physical violence. Starting 1 July 2017, any person who suffers violence from a family member can apply for a Family Violence Restraining Order (FVRO) instead of a Violence Restraining Order. The existing VRO will still cover cases of violence against non-family members, and the Misconduct Restraining Order (MRO) will continue to operate as usual.
What Constitutes Family Violence?
The new definition of family violence excludes the word “domestic” in a conscious attempt by Parliament to move away from the perception of family violence as “just a domestic”.
Due to the ever-increasing role that technology plays in society, the definition of family violence has also been expanded to include cyber-stalking and distributing, publishing, or threatening to distribute or publish personal images.
Because we also now understand that family violence encompasses much more than just physical violence, family violence is now defined as:
(a) violence, or the threat of violence, by a person towards a family member of the person; or
(b) any other behaviour by the person that coerces or controls the family member or causes the family member to be fearful.
The provision further provides the following examples of behaviour that constitute family violence:
(a) an assault;
(b) a sexual assault or other sexually abusive behaviour;
(c) stalking or cyberstalking;
(d) repeated derogatory remarks;
(e) damaging or destroying property;
(f) causing death or injury to an animal the property of a family member;
(g) unreasonably denying financial autonomy;
(h) unreasonably withholding financial support needed to meet unreasonable living expenses;
(i) preventing connections with family, friends or culture;
(j) kidnapping or deprivation of liberty;
(k) distributing or publishing, or threatening to distribute or publish, intimate personal images (also known as revenge pornography); and
(l) causing a child to be exposed to family violence.
A More Victim-and-Child-Focused Test
Unlike the procedure for a VRO, if family violence is likely to be committed, or has been committed and is likely to be committed again, the court must make the FVRO unless there are special circumstances. This is a much narrower test and affords the court much less discretion.
The court must also consider risk-assessment, police orders and police incident reports when considering whether or not to grant an FVRO, and must be granted access to this information.
The definition of “exposed” to family violence has also been expanded to protect children and align more closely with the Family Law Act 1975. If a child is likely to be exposed to family violence, a FVRO may be made for the benefit of the child. Anyone 16 years-old or older can also file their own application for a FVRO.
A Focus On Behaviour Change
Unlike the proceedings for a VRO, respondents to a FVRO can consent to a Conduct Agreements Order, which allows the court to impose restrictions on their behaviour without any admission of family violence. Unlike an undertaking, this agreement is enforceable and has criminal consequences for breaching the order in the same way that a FVRO does.
In an aim to address the root causes of family violence, the court also now has the authority to order respondents to attend a behavior change program (BCP).
Duration of the FVRO
FVROs can be made for any duration. But importantly, if the respondent is in prison, the FVRO will remain in force for a minimum of 2 years after he or she is released from prison.
Living in fear of family violence is something no one should have to experience. If you fear for your safety you should contact the police. If you need counselling, emergency housing and other family services in WA contact:
Telephone 1800 737 732.
Crisis Care Helpline
Telephone (08) 9223 1111 or free call 1800 199 008
Men’s Domestic Violence Helpline
Telephone (08) 9223 1199 or free call 1800 000 599
Women’s Domestic Violence Helpline (including for referral to a women’s refuge)
Telephone (08) 9223 1188 or free call 1800 007 339
Sexual Assault Resource Centre
Telephone (08) 9340 1828 or free call 1800 199 888
When you are ready to take the next step Tindall Gask Bentley Lawyers is here to help. We offer in-depth expertise and advice in all family law and criminal matters. Call our West Perth office today on (08) 9211 5800 or leave your details here and we’ll be in touch soon.