Changes to Restraining Orders Law in WA

Posted on 28/06/2017, Last Updated on 29/01/2019

Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016

Regarded by the State Attorney General’s office as the biggest overhaul of family violence legislation in Western Australia’s history, The Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016 (WA) (“the Amended Act”) passed through State Parliament on 17 November 2016.

The Amended Act represents a key measure in the Government’s initiative to increase the protection of victims of family violence and a shift towards a more victim-focused criminal justice system, particularly where the parties involved are in a ‘family relationship’.   It acknowledges that ‘violence’ in a family context can transcend physical violence and may include verbal, social and economic abuse.

Likewise, the Amended Act recognises that complex emotional factors arise in relationships where family violence is being committed and that reporting and leaving a violent relationship can have traumatic and devastating consequences.

Notably, the legislation heralds the introduction of a new class of order, the Family Violence Restraining Order (“FVRO”), which applies specifically to parties in a family relationship.   Misconduct Restraining Orders (“MRO”) will remain for parties not in a family relationship, where the offending behaviour is of a ‘non-violent’ nature and Violence Restraining Orders (“VRO”) for parties not in a family relationship, but where the behaviour constitutes personal violence.

A summary of the FVRO provisions

• The current test to be applied by the Court in determining an application for a VRO provides that the Court may make an order if the grounds and met and the order is ‘appropriate in the circumstances’.

• The test has been amended as it applies to FVROs. When faced with an application for a FVRO under the Amended Act the Court must make an order if the grounds are met unless there are ‘special circumstances that make the order inappropriate’.

• The grounds under which an order may be made are as follows:
  • The Respondent has committed family violence against a family member and the Respondent is likely to do so again in the future; or
  • The family member has reasonable grounds to believe the Respondent will commit family violence against the family member.

• Applying the new test means that the Court must make an order unless there are ‘special circumstances’ that would make the order inappropriate. ‘Special circumstances’ do not exist simply because either party has applied, or may apply, for a Family Court order.

• The matters to be considered by the Court when faced with an application for a FVRO has also been expanded, with the following to be regarded as being of ‘primary importance’:
  • The need to ensure the person seeking to be protected is protected from family violence;
  • The need to prevent behaviour that could be expected to cause the person seeking protection to believe they will have family violence committed against them; and
  • The need to ensure the well-being of children by protecting them from family violence.

• The definition of ‘family violence’ under the Amended Act has been revised similarly to that in the Family Law Act 1975, which was expanded in 2011 to include concepts of coercion, control and fear.

• Examples of behaviour that may constitute family violence under the expanded definition include stalking or cyber-stalking, the making of derogatory remarks, causing death or injury to a family pet, denial of financial autonomy or support and social or cultural isolation.

• Distributing or publishing (or threatening to do so) intimate images of a family member has also been included within the expanded definition, bringing conduct such as ‘revenge porn’ into the realm of criminal responsibility.

• The definition of the term ‘exposed’ has likewise been broadened to provide increased protection for children, again bringing the Amended Act more closely into line with federal family law legislation and the Amended Act now provides standing for a child between the ages of 16 and 18 to apply for their own FVRO.

• A FVRO may be made for any duration, including more than two years, and where the perpetrator has been incarcerated, the order will continue for a minimum of two years after the date of release, thereby avoiding the need for a victim to re-apply for a FVRO.

• Perpetrators of family violence may now enter into a ‘conduct agreement’, which unlike an Undertaking, will be enforceable as if it were a FVRO and Courts will have the power to order perpetrators to attend behaviour management programmes.

Commentary

Whilst reforming the ‘family violence’ definition may alleviate some of the tension between the criminal and civil jurisdictions insofar as violence within the family is concerned, it remains to be seen whether the Court’s ability to intervene before coercion and control turns into physical violence does in fact provide the protection suggested by the objects and principles of the Amended Act.   Much will depend upon the willingness of victims to report, the justice system’s ability to protect and the attitude of perpetrators towards accountability and responsibility.