On 8 March 2015, the Western Australian Attorney-General, Michael Mischin, announced that WA would be introducing a new kind of restraining order; the Family Violence Restraining Order, which will constitute an amendment to the Restraining Orders Act 1997. A Bill has not yet been introduced however amendments to the legislation are expected to be implemented by the end of this year.
The move follows an almost 300% increase from 2004 to 2012 in the number of family violence-related orders sought in Western Australia and implements some of the recommendations made by the Law Reform Commission of Western Australia in its report entitled “Enhancing Family and Domestic Violence Orders”, published in June 2014. In its terms of reference, the Commission was instructed to consider the benefits of separate family and domestic violence legislation, the utility and consequences of legislation for family and domestic violence restraining orders other than under the Restraining Orders Act 1997, and the provisions which should be included in legislation if it were to be developed.
Why introduce Family Violence Restraining Orders?
A common submission made by interested parties to the WA Law Reform Commission was that family and domestic violence was often misunderstood by police and Magistrates, resulting in an inconsistency in decision making. The significant increase in reported cases of family and domestic violence also meant that Court procedures and processes were under more strain, and efficient processes were necessary.
The Commission concluded that no separate family and domestic violence legislation should be enacted, however crucially, that “violence” in a family or domestic relationship can transcend physical violence and include other forms of social, economic and emotional abuse. An amendment to the existing legislation was necessary to remove the inconsistencies and to identify more accurately what “family and domestic violence” is.
In the Government’s media release, Mr Mischin stated that the new Family Violence Protection Orders would “be a distinct third category of orders and will adopt a new modern definition of family violence, moving away from the concept of a victim having to provide evidence of an act of abuse towards behaviour intended to intimidate, coerce or control”.
Family violence under the Restraining Orders Act 1997 (WA)
Currently, victims of domestic violence in Western Australia have recourse to Violence Restraining Orders and Misconduct Restraining Orders under the Restraining Orders Act 1997 (WA), or the Criminal Code 2013 (which requires prosecution of an offence by the police). An “act of family or domestic violence” is one of the grounds which the Magistrates Court may consider when determining whether to grant a Violence Restraining Order.
When can a Family Violence Restraining Order be made?
Violence Restraining Orders can be made in circumstances where a Respondent has committed an act of abuse against the Applicant. Misconduct Restraining Order is more frequently used in circumstances where violence, intimidation or damage is apprehended.
The Restraining Orders Act 1997 defines “act of family and domestic violence” as; assaulting or causing personal injury to the person, kidnapping the person or depriving the person of his or her liberty, damaging the person’s property (including an animal), behaving in an ongoing manner that is intimidating, offensive or emotionally abusive, pursuing or causing the person or a third person to be pursued with the intent to intimidate that person, or threatening to assault (or harm the person), kidnap the person or damage the person’s property.
Family Violence orders in other States and Territories
In contrast to the position in Western Australia, there are four Australian jurisdictions with separate legislation for family and domestic violence restraining orders: Queensland (Domestic and Family Violence Protection Act (2012)), Victoria (the Family Violence Protection Act 2008 (Vic)), Northern Territory (the Domestic and Family Violence Act) and Tasmania (the Family Violence Act 2004). In these jurisdictions, different legislation exists in relation to orders for violent and other behaviour in non-family and domestic relationships. In the other States, family and domestic violence is encompassed by other legislation relating to criminal law or restraining orders: the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the Intervention Orders (Prevention of Abuse) Act 2009 (SA), and the Domestic Violence and Protection Orders Act 2008 (ACT)