8.1 The legislation sets out the circumstances when the court “may” make an AVO1 and when it “must”.2 In relation to APVO proceedings, the court has a discretion to refuse to issue process.3
8.2 The court must make an AVO when a defendant pleads guilty to, or is found guilty of, a domestic violence offence or an offence involving intimidation or stalking, unless it is not required to do so (because an order has already been made or because the person in need of protection opposes the order).
8.3 In other circumstances, the court can decide whether or not to make an AVO. In deciding whether or not to make an AVO, the court must consider certain factors if the order is going to prohibit or restrict access to the defendant’s residence.
FACTORS TO BE CONSIDERED WHEN MAKING AN AVO
8.4 If the order will have the effect of prohibiting or restricting access to the defendant’s residence, the factors the court must consider are:
(a) the accommodation needs of all relevant parties;
(b) the effect of making an order on any children living or ordinarily living at the residence; and
(c) the consequences for the person for whose protection the order would be made and any children living or ordinarily living at the residence if an order restricting access by the defendant to the residence is not made.4
8.5 Where children are involved, the court is also required to consider issues relating to contact with children. Thus, a person seeking to apply for or vary an AVO must inform the court of any relevant family law contact order or any such pending order. In deciding whether to make an AVO, the court must:
Other jurisdictions
8.6 The legislation in other jurisdictions appears to provide more comprehensive and/or structured guidance. For instance, the ACT legislation states that the paramount consideration in deciding whether to make a protection order is the need to ensure that the aggrieved person is protected from domestic violence.6 The court must also consider the welfare of children who may be affected by the defendant’s behaviour; the accommodation needs of the aggrieved person and any children; any hardship that may be caused by the making of the order; the income and assets of the defendant and aggrieved person; whether contact between the aggrieved person or the defendant and any child of either of them is relevant; any previous domestic or personal violence committed by the defendant; any previous protection orders and any previous contraventions; the need to ensure the property is protected from damage; and anything else that is relevant.7
8.7 In South Australia, the court must consider, as factors of primary importance, the need to ensure family members are protected from domestic violence and the welfare of any children affected. It must also have regard to the accommodation needs of family members; any relevant family contact order; how a restraining order would affect contact; any hardship that may be caused; the income and assets of the defendant; any other legal proceedings between the parties and any other matter which is relevant in the circumstances.8
8.8 In Western Australia, in violence restraining order proceedings, the court must consider, as matters of primary importance, the need to ensure the applicant is protected from personal violence; the need to prevent behaviour that causes fear of personal violence; and the welfare of any children affected. It must also consider the accommodation needs of the parties; any hardship that may be caused; any family orders; any other current legal proceedings between parties; the defendant’s criminal record; any previous similar behaviour; and any other relevant matters.9
8.9 In Tasmania, the paramount consideration is the protection and welfare of the person for whose benefit the order is sought. The court must also consider any relevant family contact order and whether access between the parties and any child who is a member of the family of either party is relevant to the making of the order.10
Views in submissions
8.10 Many submissions expressed the view that the need to ensure the safety and protection of the applicant from domestic and personal violence should always be the paramount consideration.11 Others have suggested that the safety of children should be the paramount factor in granting an AVO.12
8.11 While safety and protection issues are considered by the court, some submissions have suggested that there is currently too much emphasis on accommodation.13 Provisions do not specifically refer to the need to consider the safety of the person in need of protection14 and do not “position the safety and well being of children as a priority for the courts in the granting of orders”.15 A recent study revealed that accommodation was one of the main considerations of the court, particularly in contested cases.16 It has been suggested in a submission that often it is the defendant’s accommodation needs rather than the applicant’s that the court considers.17 The legislation currently requires the court to consider the accommodation needs of all parties. However, when translated into practice, the court appears to be caught up in considering whether it would be unfair to remove the defendant from the home, particularly if the defendant makes a statement about the lack of alternative accommodation which is not questioned in the court.18 It has also been suggested that orders removing the defendant from the home can have family law implications regarding property settlement.19 Such orders also pose complex issues where the property the defendant may be excluded from is their sole property and not property of a marriage or de facto relationship and is heavily mortgaged. The same issue can arise even where a home is jointly owned, as some defendants claim to be impoverished, excluded from their residence, or left with no money for rent.20
8.12 The policy of the Department of Housing regarding AVOs and accommodation is noteworthy in this context in that it requires the defendant to leave the house even if the house is in the person’s name if the court has made an AVO (even an interim order) against the person. However, generally, the most common outcome is for the woman to be sent to a refuge21 as more such accommodation is available for women than men. This practice is against the spirit of the legislation which is focussed on protecting aggrieved persons, usually women, not punishing them by removing them from their home for no fault of their own. This also has a detrimental effect on children in that they are moved to unfamiliar surroundings and may need to move school temporarily causing them disruption and embarrassment.22
8.13 Moving out of the family home means that the applicant and her/his children are not only victims of violence, but also homeless.23 In cases where the applicant is currently in temporary accommodation such as a refuge or staying with friends, a Magistrate may mistakenly believe that the victim’s accommodation needs have been met, allowing the defendant to stay on in the family home.24 However, it has been noted that leaving a violent situation should not have to mean leaving (and depriving the children of) the family home.25 Indeed, one agency with experience in this field has stated that “leaving the marital home is a strong indicator of post-separation poverty and that lack of alternative accommodation is central to women’s and children’s safety and their recovery from the effects of domestic violence”.26
8.14 The emphasis on the accommodation needs of the defendant has resulted in the courts being reluctant to make exclusion orders.27 Often they are not sought by police prosecutors when appropriate,28 possibly out of concern that property rights in family law proceedings may be affected.29 There is a view that some Magistrates feel that exclusion orders relate more to property than safety, and should therefore be dealt with under the FLA, whereas an AVO complaint should trigger a question about exclusion orders.30
8.15 On a different note, some submissions have stressed the need to consider the impact on the defendant when making an AVO. It has been suggested that a provision similar to s 6(2) of the Protection Orders Act 2001 (ACT) be included in Part 15A which states that “if a protection order is to be made on an application under this Act, it must be the protection order that is least restrictive of the personal rights and liberties of the Respondent as possible that still achieves the objective of the Act”.31 Ramifications of granting an AVO can be significant: in terms of costs, removal from home, and limitations on seeing children and these issues must be given due consideration.32
Weighting of factors
8.16 Some have suggested that the legislation should provide guidance on what weighting ought to be given to the listed factors.33 More trivial conduct such as damaging property or making threats currently may have equal weight to severe physical assault. Such matters should clearly carry less weight, and be dealt with commensurate to the seriousness of the conduct. However, Magistrates should retain a discretion in all matters because each family violence dispute is different.34
8.17 On the other hand, others are opposed to weighting factors in the legislation as the circumstances in each case are different.35 Besides, the objects of Part 15A are meant to be adequate in stating the primary focus of the legislation.36
8.18 Yet, others have suggested that other factors ought to be weighted in accordance with the specifics of individual cases as is the case in the ACT legislation.37
8.19 AVLICC with its diverse membership considers that the factors ought to be weighted with the paramount consideration being the safety of the children and the applicant. They have suggested that the factors the court must consider are:
- the effect of not making an order on the safety of any children living or ordinarily living at the residence; (believing this wording to be more appropriate as it places the emphasis on child safety)
- the consequences for the person for whose protection the order would be made and any children living or ordinarily living at the residence if an order restricting access by the defendant to the residence is not made; and
- the accommodation and safety needs of all parties.38
8.20 It has also been suggested that evidence of violence and conduct by the defendant, the availability of alternative accommodation for both parties, the availability of funds and resources to both parties to provide accommodation, the reasons for wishing to remain in the premises and the proprietary interests of both parties may also be added to the list of factors to be considered.39
8.21 The Department for Women supports changing the emphasis away from accommodation and onto:
1. safety of children affected by the defendant’s behaviour;
2. accommodation and other needs of the applicant and children, for example, income, assets, access to employment, healthcare, schooling; and
3. accommodation needs of the defendant.40
The Commission’s views
8.22 The legislation has rightly distinguished between the grounds on which the court can make a final order and the factors the court must consider when deciding whether to make an order as is the case in other jurisdictions. However, the legislation only identifies factors relevant to the court’s decision where the orders will prohibit or restrict access to the defendant’s residence. In other jurisdictions factors are listed for the guidance of the decision maker in all cases. The factors are considered whether or not the order has the effect of prohibiting or restricting access to the defendant’s residence. The Commission favours this approach. The factors to be considered should reflect the objects of the legislation and the grounds upon which an order may be granted.
8.23 The factors currently listed in the legislation41 are clearly appropriate though they give the appearance of being weighted in favour of the accommodation needs of the parties and in particular the defendant. To avoid this perception, the Commission is of the view that the factors should focus more generously on the protection of the applicant and any children who may be affected.
8.24 The Commission favours a combination of:
(a) the ACT approach which focuses on protection being the paramount consideration when making an order; and
(b) the approach suggested in some of the submissions that requires consideration of the effects or consequences of not making an order on the applicant and any children affected.
8.25 In keeping with the research on the ill effects of domestic violence on children and in recognition of the terms of the Convention on the Rights of the Child,42 the Commission is convinced that equal weight should be given to consideration of the welfare and protection of children who may be affected.
8.26 While protection from domestic and personal violence is of paramount importance, the Commission is mindful that the defendant’s personal rights and liberties must not be unduly compromised. Accordingly, the Commission favours adopting the provision in the ACT legislation which provides that an order “must be as unrestrictive on the personal rights and liberties of the defendant as possible, while still achieving the objects of the Act”.43
RECOMMENDATION 32
Section 562D(2) and s 562FA(2) should be repealed and a new section inserted to provide that the paramount consideration in deciding whether to make an order should be the safety and protection of the applicant and any child directly or indirectly affected from domestic or personal violence.
In making this determination, the court should consider:
(a) the effects and consequences on the safety of the person for whose protection the order would be made and any children living or ordinarily living at the residence if an order restricting access by the defendant to the residence is not made;
(b) any hardship that may be caused by making or not making the order, particularly on the person for whose protection the order would be made and any children;
(c) the accommodation needs of all parties and particularly the applicant and any children; and
(d) any other relevant matter.
The section should provide that the order must be as unrestrictive as possible on the rights and liabilities of the defendant while still achieving the objectives of the legislation.
STANDARD ORDERS
Statutory orders
8.27 Section 562BC sets out the statutory orders that a court can make. They are that:
8.28 The court is empowered to extend the application of these orders to a person with whom the protected person has a domestic relationship.44
8.29 The standard terms applicable to telephone interim orders are that the defendant must not “assault, molest, harass, threaten or otherwise interfere with the protected person”.45 While the terms as stated do not include a prohibition against stalking and do not extend to persons with whom the protected person may have a domestic relationship, this section is not intended to affect s 562BC.
8.30 In effect this would mean that the protection available under a TIO could be no less than that available under an interim or final order. However, there is some concern about the level of protection available under a TIO. The police service in their submission stated that the (perceived) differences in the application of the standard orders for different types of orders is confusing and makes the enforcement of breaches more difficult. Accordingly, they suggested developing common standard orders that apply equally to all final, interim and telephone orders.
The Commission’s view
8.31 On a strict reading of s 562H(4) it would appear that there is no difference between the protection available under a TIO and other orders. The Commission agrees that different levels of protection are not justified particularly when TIOs are granted in emergency situations when the most protection is necessary. In the Commission’s view, the counter argument that they are granted ex parte and therefore ought not to have the same extent of protection as other orders, is weak. Additionally, the concerns of the police service support the Commission’s view that the same standard orders should apply to all types of AVOs whether final, interim or TIO. To avoid any further confusion, the Commission is of the view that s 562H(4) must be clarified to state that the standard terms of a TIO are the same as those of other orders.
Other orders
8.32 In addition to the orders prescribed by statute, there are other standard orders46 that have been drafted in consultation with Magistrates, lawyers and domestic violence agencies that are commonly used in the courts. These standard orders are referred to in the Local Courts Practice and Procedure Manual but are not contained in the legislation. Consequently they may vary from court to court. However, they provide some guidance and promote consistency and efficiency for the users: the parties, court staff and police.
Views in submissions
Observations regarding adequacy of other orders
8.33 There appears to be general agreement that the terms of the other standard orders should apply consistently for all types of orders.47 However, there is a view that more urgency should be demonstrated for TIOs as they are granted ex parte without notice.48
8.34 With regard to the adequacy of the prohibitions, the general consensus appears to be that the standard orders do cover most issues49 and that their existence promotes a degree of consistency making it easier for police to enforce and for the courts to administer.50
8.35 On the other hand, there is concern that the list is not exhaustive51 and is inadequate.52 This view may be due in part to the need to finetune some of the specific orders as discussed below.
Observations regarding inclusion in legislation
8.36 Another general issue that was the subject of differing views was whether standard orders should be contained in the legislation. Some suggested that they should be included53 as a schedule to the Act54 for the sake of consistency,55 provided it is clear that they are a guide only.56 If they are included, it has been suggested that there be a provision which states that “the prohibitions and restrictions are recommended, but are not exclusive of any other prohibition or restriction the court sees as necessary or desirable to impose”57 and that it does not prevent the making of special types of orders that would meet individual needs.58
8.37 On the other hand, those that oppose the inclusion of standard orders in legislation59 are of the view that inclusion will make the orders inflexible60 and entrenched resulting in Magistrates being reluctant to vary them, thus compromising the safety of the applicant.61
8.38 Clearly one of the greatest benefits of AVOs is their capacity to be individually tailored.62 However, the Commission has heard of many instances where the capacity for individual tailoring has not been used to its best advantage. Where police apply for an AVO on behalf of a victim, the victim should be shown the list of conditions available and have input into them to make sure they are appropriate and workable. However, it appears that applicants are often not consulted about suitable conditions which means that where an impractical order has been made, an application for variation of the order necessarily follows.63 Similarly, orders prohibiting a person from coming within a certain distance of another must take the particular circumstances into account. The Department of Education and Training cited instances where the courts make an order preventing one student from coming within a certain distance of, or preventing them from attending, another student’s school which proves difficult to enforce where both students attend the same school. Similarly an order that a student may not approach a teacher can also have the effect of preventing a student from attending school. These situations can have significant ramifications in country areas where the options for alternative schooling are limited. When making orders, courts must consider such factors and tailor the order carefully such that it is possible to implement.64
8.39 Rather than include the orders in the legislation, it has been suggested that the orders must be:
(a) flexible and capable of being tailored to suit the circumstances of each case;
(b) written in plain English, being careful of words like “intimidate”, “harass”, “interfere with” such that people from non English speaking backgrounds will understand the orders;65 and
(c) translated into as many other languages as possible.66 , with disc translations available at all court registries.67
Specific clauses
8.40 The Commission has also received comments on the application and terminology of specific clauses in the standard orders.
8.41 Clause 1 states that the defendant must not “… molest …” the protected person. Given the common usage of the terms abuse and molest in the context of sexual abuse, one submission has suggested that the terminology be reviewed to distinguish sexual abuse and molestation from other sorts of conduct.68 Similarly, some Magistrates tend to amend the general protection provided in this clause by removing words such as “assault” whereas the terms should be simplified and retained.69
8.42 Clauses 2, 3 and 4 randomly capture the concept of an exclusion order.70 However there is no specific reference to exclusion orders. It has been suggested that the standard orders should make specific provision for exclusion orders to reflect international best practice and highlight their existence.71
8.43 Clause 6 refers to not contacting the protected persons for the purposes of arranging or exercising “access to children”. It has been suggested that the order should refer to exercising “contact” with children rather than “access”.72
8.44 Clause 7 prevents the defendant from contacting the protected person but does not prevent the defendant from locating the whereabouts of the protected person (for example, through a private investigator)73 or approaching the person.74 There is also no provision that prohibits the defendant from loitering which may be more practicable than prescribing an exclusion zone of 100 metres.75 Further, in Chapter 5, the Commission recommends that the standard APVO should be amended to provide that parties may contact each other for the purpose of arranging or engaging in mediation.76
8.45 A related issue is whether the order must contain the address details of the victim given that the aim is to provide protection to the person in fear. While it can be argued that a defendant cannot avoid the victim if the defendant does not know where she or he lives, equally it can be argued that knowing the address can lead to breaches. One suggestion was that there ought to be no address details of the victim on the order and that if the defendant happened to find out, then, in keeping with the spirit of the legislation, the defendant must keep away.77
8.46 Clause 8 requires that the defendant surrender all firearms and related licences to the police. Many submissions have expressed concern about whether such restrictions should extend beyond the expiry of the AVO.78
8.47 Apart from the above with regard to specific clauses, there is a view that the standard orders contain too many conditions and are too complicated,79 and that they are not drafted as well as they could be.80 Some Magistrates have tried to redraft and classify them, depending on whether they are made by consent or not.81 It has been suggested that the orders should separate home and work premises to delineate precisely the boundaries of the defendant’s exclusion.82 However, this would not be practical where the applicant and defendant work together.
The Commission’s views
8.48 The Commission agrees that the standard orders ought not to be contained in the legislation or as a schedule to the Act. Such inclusion may result in losing the flexibility that is of great value when tailoring orders to suit the circumstances of the case.
8.49 There is currently no provision in the legislation that makes any reference to the non-statutory standard orders. While these conditions ought not to be included in the legislation, it is important that Magistrates are made aware of the role and purpose of standard orders. The Commission is also of the view that the standard orders be redrafted simplifying the terminology and recommends that they be available in other languages.
8.50 In relation to the specific clauses, the Commission agrees that there should be a separate category of “exclusion orders”, and that the amendments suggested above to clauses 6 and 7 be implemented. However, the Commission disagrees with the view that the address details of the victim be withheld. While providing protection is the main focus, it is important that the defendant is not unjustifiably disadvantaged. In the Commission’s view requiring a defendant to keep away from the victim in keeping with the spirit of the legislation will be more difficult to follow up.
RECOMMENDATION 34
There should be specific reference to Exclusion orders in the non-statutory Standard orders and that the following clauses be amended:
Clause 6 should refer to exercising “contact” with children rather than “access”.
Clause 7 should prevent the defendant from contacting, locating and approaching the protected person or loitering in the person’s presence.
FOOTNOTES
1. Crimes Act s 562AE(1) and s 562AI(1).
2. Crimes Act s 562BE and s 562BF.
3. Crimes Act s 562AK.
4. Crimes Act s 562D(2).
5. Crimes Act s 562FA(2).
6. Protection Orders Act 2001 (ACT) s 6(1)(a).
7. Protection Orders Act 2001 (ACT) s 41.
8. Domestic Violence Act 1994 (SA) s 6.
9. Restraining Orders Act 1997 (WA) s 12.
10. Justices Act 1959 (Tas) s 106B(4AAB).
11. Law Society of NSW, Criminal Law Committee, Submission; Graham Johnson, Magistrate, Submission; Julie Stubbs, Submission; Hawkesbury Nepean Community Legal Centre, Submission.
12. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Newcastle consultation; Wollongong consultation; Campbelltown Benevolent Society Domestic Violence Unit, Consultation.
13. AVLICC, Submission.
14. Jane Wangmann, Submission.
15. Australian Domestic and Family Violence Clearinghouse, Submission.
16. Australian Domestic and Family Violence Clearinghouse, Submission. Referring to a study of 32 court transcripts in Sutherland and Waverley Courts conducted by the NSW Strategy to Reduce Violence Against Women.
17. Australian Domestic and Family Violence Clearinghouse, Submission; Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation.
18. Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation.
19. Wollongong consultation.
20. Mt Druitt and Area Community Legal Centre, Submission.
21. Bourke consultation.
22. Orange consultation.
23. AVLICC, Submission; Australian Domestic and Family Violence Clearinghouse, Submission.
24. Legal Aid NSW, Submission. Legal Aid notes, however, that its experience has been that, despite this concern, Magistrates make appropriate orders in these cases.
25. Australian Domestic and Family Violence Clearinghouse, Submission; Orange consultation.
26. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
27. NSW, Department for Women, Submission; Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation.
28. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
29. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission. Note though, that occupation of the family home is irrelevant under the Family Law Act 1975 (Cth) for the purposes of property settlements: s 79(4).
30. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
31. Law Society of NSW, Criminal Law Committee, Submission.
32. Law Society of NSW, Criminal Law Committee, Submission; Family Law Reform Association, Consultation.
33. Manly Warringah Women’s Resource Centre, Submission.
34. Mt Druitt and Area Community legal Centre, Submission.
35. Wollongong consultation.
36. Legal Aid NSW, Submission.
37. Julie Stubbs, Submission.
38. AVLICC, Submission.
39. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
40. NSW, Department for Women, Submission; South West Sydney Legal Centre, Submission.
41. Crimes Act s 562D(2) and s 562FA(2).
42. In particular Article 19, which provides that signatories shall “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child”. See para 2.69 and Recommendation 3, where the Commission recommends the inclusion of a reference to the United Nations Convention on the Rights of the Child in the policy objectives applicable to ADVOs.
43. Protection Orders Act 2001(ACT) s 41.
44. Crimes Act s 562BD(1).
45. Crimes Act s 562H(4).
46. See Appendix B for a list of the Standard Orders.
47. AVLICC, Submission.
48. Graham Johnston, Magistrate, Submission.
49. AVLICC, Submission; NSW, Department for Women, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Hawkesbury Nepean Community Legal Centre, Submission; Jane Wangmann, Submission.
50. Jane Wangmann, Submission.
51. Jane Wangmann, Submission.
52. Australian Domestic and Family Violence Clearinghouse, Submission; Chief Magistrate, Local Court of NSW, Submission.
53. NSW, Department for Women, Submission; Hawkesbury Nepean Community Legal Centre, Submission; Law Society of NSW, Criminal Law Committee, Submission.
54. South West Sydney Legal Centre, Submission; Manly Warringah Women’s Resource Centre, Submission; NSW Department of Community Services, Submission; Multicultural Disability Advocacy Association, Submission.
55. Law Society of NSW, Criminal Law Committee, Submission.
56. NSW, Department for Women, Submission.
57. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
58. Jane Wangmann, Submission.
59. AVLICC, Submission; NSW Police Service, Submission.
60. AVLICC, Submission.
61. Jane Wangmann, Submission.
62. Jane Wangmann, Submission.
63. Erin’s Place for Women and Children, Submission.
64. NSW Department of Education and Training, Submission.
65. Julie Stubbs, Submission; Law Society of NSW, Criminal Law Committee, Submission; Jane Wangmann, Submission.
66. Redfern Legal Centre and South Sydney Domestic Violence Unit, Consultation; NSW, Department for Women, Submission.
67. Chief Magistrate, Local Court of NSW, Submission.
68. Mt Druitt and Area Community Legal Centre, Submission.
69. Jane Wangmann, Submission.
70. An exclusion order prevents the defendant from residing in, or restricts the defendant from approaching, the family home.
71. Australian Domestic and Family Violence Clearinghouse, Submission. See also discussion at para 8.10-8.15.
72. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Graham Johnson, Magistrate, Submission.
73. AVLICC, Submission.
74. WDVCAS Network meeting.
75. Graham Johnson, Magistrate, Submission.
76. See Recommendation 17.
77. Bourke consultation.
78. See para 10.6 and 10.10 for detailed discussion.
79. Law Society of NSW, Criminal Law Committee, Submission.
80. Graham Johnson, Magistrate, Submission.
81. Graham Johnson, Magistrate, Submission.
82. Graham Johnson, Magistrate, Submission.
