A suite of new changes came into play in 2017, resulting in a changed legal landscape for family violence and restraining orders. This year will see even further changes to the law where victims of family violence and perpetrators live together as tenants in rental accommodation.
Western Australia saw 11,809 family and domestic violence assault or threatening behaviour offences reported in 2016-2017,* which suggests these changes are likely to impact upon a significant number of people.
Police Minister Liza Harvey stated when the reforms were publicised that the intention of this suite of reforms was to send "a message to the courts that we would prefer them to err on the side of the victim and err on the side of granting one of the violence restraining orders in these scenarios..." The reforms attempt to achieve that through a number of steps.
Firstly, those applying for a restraining order against a family member, partner or ex-partner now have a more clearly labelled category of order to apply for – the Family Violence Restraining Order (or FVRO). This type of restraining order has an expanded understanding of abuse and violence. In deciding whether there has been 'family violence' (and ultimately whether a FVRO should be granted) the court now has to look at not only whether there has been violence, or a threat of violence, but any behaviour which is coercive, controlling or causes fear.
Practical examples of coercive, controlling or intimidating behaviour might include things like
- stalking/cyber-stalking type behaviour (such as tracking the person through their mobile or monitoring their email without consent );
- being verbally abusive to the person on a repeated basis;
- causing death or injury to a pet belonging to the person;
- engaging in economic abuse by unreasonably denying the person from having or controlling money (such as denying access to joint bank accounts or unreasonably withholding money needed to meet reasonable living expenses e.g. food when that person is financially dependent);
- controlling who the person can see or spend time with; and
- distributing (or threatening to distribute) personal images of a person (e.g. 'revenge porn').
Under these new laws, when a person applies for a FVRO, the court must make an FVRO unless there are special circumstances, if it is satisfied that there has been violence, a threat of violence, or coercive or controlling behaviour that would cause fear, such as the examples above. This is a significant change. Previously, the courts could be satisfied that abuse of the type described had been committed or would be likely to occur in the future – but it could still decide not to issue a restraining order.
The Court's discretion to decide not to go ahead with issuing an order is much more limited now. The legislation also specifically states that these 'special circumstances' do not exist just because the parties can apply for other orders protecting children or property at the Family Court. This is no doubt aimed at addressing the reluctance to make restraining orders in certain circumstances (particularly where children are involved) in the Magistrates Court because of the perception that a Magistrate would be interfering with what is perceived to really be a Family Court issue.
The aim of these changes is no doubt an attempt by parliament to reflect the increasing understanding by the community of the dynamics of family and domestic violence. In particular, the changes reflect that family and domestic violence is often nuanced and may be largely based upon manipulation and control, rather than outright physical violence. What these changes also underscore is the importance of obtaining guidance through the FVRO process by an experienced advocate in court. The success of an application may be influenced by counsel's ability to effectively draw out evidence of these nuanced patterns of behaviour in a relationship marked by domestic violence, and to highlight the relevance of that behaviour to the criteria spelled out under the new legislation. For that reason, it can be wise to invest in representation from a lawyer experienced in court generally, and experienced in restraining order matters specifically.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.