What is a Family Violence Restraining Order?
The Western Australian Parliament has introduced a new type of restraining order in Western Australia, being a “Family Violence Restraining Order” (“FVRO”). The FVRO was introduced in Western Australia on 1 July 2017. A FVRO is governed under the Restraining Orders Act 1997 (WA) (“Act”) which also offers Violence Restraining Orders (“VRO”) and Misconduct Restraining Orders to help victims of domestic violence, other violence and nuisance obtain protection orders from the Court.
On 28 June 2018, the Australian Government introduced the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 (“the Bill”) into Federal Parliament. The purpose of the Bill is to ban a person who is accused of inflicting family violence from cross-examining their victim in Court. Rather, a legal practitioner will conduct the cross-examination of the applicant (person seeking protection). The Bill is yet to be passed by the Federal government. This initiative will provide further safeguards for victims of domestic violence in facing their perpetrators.
Prevalence of Domestic Violence
Domestic violence is prevalent in Australia. It overwhelmingly involves men abusing their female partners. Men are most likely to experience acts of violence from strangers and in public places whereas women are most likely to experience violence by someone they know and the violence usually occurs at their home. The statistics of domestic violence in Australia include the following:
- On average at least 1 woman a week is killed by a partner or former partner;
- 1 in 4 women experience emotional abuse by their partner compared to 1 in 6 men;
- 1 in 6 women experience physical violence and/or threats by their partner compared to 1 in 16 men;
- 1 in 5 women have been sexually assaulted and/or threatened compared to 1 in 20 men;
- Family violence causes more illness, disability and deaths than any other risk factor for women aged 25-44;
- More than half of women who have experienced family violence by their partner, experienced more than one violent incident;
- More than two-thirds of mothers who had children in their care when they experienced violence from their previous partner said their children had seen or heard the violence;
- In 2015–16, about 45,700 children were the subject of a child protection substantiation (investigated notification where there is sufficient evidence of abuse or neglect);
- In 2016, the police recorded 53 sexual assaults each day against women and 11 against men;
- In 2015, on average there were 9 women and 2 men hospitalised each day after being assaulted by their spouse or partner.
Domestic violence is the leadings cause of homelessness in Australia. In 2016–17, about 72,000 women, 34,000 children and 9,000 men sought homelessness services and reported that family and domestic violence caused or contributed to their homelessness.
Difference between VRO and FVRO?
Prior to 1 July 2017 in Western Australia, a person who experience domestic violence by another person, whether or not they were related, could apply to the Magistrates Court for a protection order being a VRO. That is no longer the case. If a person experiences acts of abuse by a family member then that person can apply for a FVRO. If the parties are not related such as having a relationship of colleagues, neighbours or friends then a person who is experiencing acts of abuse can apply for a VRO. Essentially, FVROs are reserved for parties that are related or family members. A FVRO is not limited to parents, children and spouses (de facto relationship, boyfriend/girlfriend and married couples). It can also include grandparents, aunts and uncles.
The definition of domestic violence and family violence has been amended under the Act to include wider and border definitions. Under section 5A of the Act, family violence and acts of family violence includes violence, or a threat of violence, by a person towards a family member of the person; or any other behaviour by the person that coerces or controls the family member or causes the family member to be fearful.
Examples of family violence include but are not limited to:
- an assault against the family member;
- a sexual assault or other sexually abusive behaviour against the family member;
- stalking or cyber-stalking the family member;
- repeated derogatory remarks against the family member;
- damaging or destroying property of the family member;
- causing death or injury to an animal that is the property of the family member;
- unreasonably denying the family member the financial autonomy that the member would otherwise have had;
- unreasonably withholding financial support;
- preventing the family member from making or keeping connections with their family, friends or culture;
- kidnapping, or depriving the liberty of, the family member, or any other person with whom the member has a family relationship;
- distributing or publishing, or threatening to distribute or publish, intimate personal images of the family member.
The definition of family violence also extends to any acts of family violence inflicted in front of a child of the family, thus if the child observes the acts then it is constituted as the child suffering family violence. Further, if a person does not commit any of the above mentioned acts personally but instead gets someone else to commit any of the above acts on their behalf, it can be taken as if they have committed the act themselves.
As outlined above family violence is not limited to physical abuse, it also includes financial, emotional and psychological abuse.
Factors considered by the Court when granting a FVRO
There are a number of matters to be considered by the Court if they are satisfied a FVRO should be made. Among other factors, the Court must be satisfied of the following:
- the need to ensure that the person seeking to be protected is protected from family violence;
- the need to prevent behaviour that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them;
- the need to ensure the wellbeing of children by protecting them from family violence, behaviour referred to in paragraph (b) or otherwise being exposed to family violence;
- the accommodation needs of the respondent and the person seeking to be protected;
- the past history of the respondent and the person seeking to be protected with respect to applications, whether in relation to the same act or persons as are before the court or not;
- hardship that may be caused to the respondent if the order is made;
- any family orders;
- other current legal proceedings involving the respondent or the person seeking to be protected;
- any criminal convictions of the respondent;
- any previous similar behaviour of the respondent whether in relation to the person seeking to be protected or otherwise;
- other matters the court considers relevant.
The Court gives primary consideration to factors (a) to (c) listed above.
How do I obtain a FVRO?
In order to apply for a FVRO, you need to complete an application – Family Violence Restraining Order and lodge it at your local Magistrates Court.
There are no fees associated with the application. The process of obtaining a FVRO involves the following:
- An application made to the Magistrates Court;
- Normally when you file your application, a hearing is held on the same day. The first hearing is usually ex-parte, meaning without the respondent’s presence. In this hearing the Magistrates or Judicial Officer will hear your case and determine whether an interim FVRO should be issued. If it is, then the police will serve the Interim FVRO on the person whom you are seeking protection from, who is known as the “respondent” in the proceedings. The respondent has 21 days from the date they are served with the interim FVRO to file an objection.
- If the respondent files an objection to the interim FVRO with the Court, then the matter is allocated to a mention hearing. If the respondent does not agree to the interim FVRO being made final then the matter is allocated to trial. If the respondent doesn’t file an objection, the order becomes final and typically lasts for 2 years.
- The final stage is a trial, where the Judicial Officer hears your evidence and the respondent’s evidence to determine whether the FVRO should be made on a final basis.
Unless varied or cancelled, a final FVRO against an adult usually lasts for 2 years, and up to 6 months against a child or young person (over the age of 10 years old).
FVROs are civil matters between the parties. However, if the respondent breaches the terms of the FVRO, they commit a criminal offence which may result in a fine, imprisonment or both.
- Crisis Care (24 hour) – (08) 9223 1111 or 1800 199 008
- National Sexual Assault, Domestic Family Violence Counselling Service (1800 RESPECT) – 1800 737 732
- Women’s Domestic Violence Helpline – (08) 9223 1188 or 1800 007 339 u
- Men’s Domestic Violence Helpline – (08) 9223 1199 or 1800 000 599
- Children’s Counselling Services – (08) 9328 1888
Given the different types of violence restraining orders available, a person should consider the following prior to making an application:
- The type of restraining order that is applicable to your situation; and
- The matters that the Court will consider in granting the order that you seek.
Lynn & Brown Lawyers have decades of experience in representing clients in domestic violence matters, whether for the applicant (person seeking to be protected) or the respondent. If you need any assistance with the application or representation at Court in relation to restraining orders, do not hesitate to contact our office for legal advice.
About the authors:
Christina Ati was admitted in the Supreme Court of WA on 1 August 2014 and has developed and refined her skills as a Family Lawyer. Christina has experience in both children’s issues and matrimonial/de facto property settlement matters. Jacqui is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.