Violence Restraining Orders: Then and Now
On 1 July 2017, major amendments to the Restraining Orders Act 1997 came into effect, creating, among other things, a new class of restraining order; the Family Violence Restraining Order. Just over a year later, and more than twenty years after the Act became law, it is worth reflecting on what the law was, what it is now and why it has changed.
The Restraining Orders Act 1997
The Restraining Orders Act (‘the Act’), as passed, provided that a court may make a violence restraining order (VRO) if it is satisfied that, unless restrained, the respondent will:
- “commit a violent personal offence against the applicant” or
- “behave in a manner that could reasonably be expected to cause the applicant…to fear that the respondent will commit such an offence”.1
The court also had to be further satisfied that the granting of the order was “appropriate in the circumstances”. A “violent personal offence” was defined as meaning “an offence against the person under Part V of The Criminal Code, other than Chapters XXXIV and XXXV”2. This part of The Criminal Code included, and still includes, offences such as common assault, grievous bodily harm, sexual penetration without consent and deprivation of liberty.
The Act, at that point, made no distinction between domestic and non-domestic violence, and made no reference to the nature of the relationship between the parties.
On 1 December 2004, a swathe of amendments to the Act came into effect, creating the system of restraining orders that would survive, mostly intact, until the amendments of 1 July 2017. This represented an overhaul of the original Act, expanding the conduct that could give rise to a VRO and creating a less stringent test for the Court to apply.The Act was amended to provide that a court may make a VRO if it is satisfied that:
- “the respondent has committed an act of abuse against a person seeking to be protected and the respondent is likely again to commit such an act against that person”; or
- “a person seeking to be protected or a person who has applied for the order on behalf of that person, reasonably fears that the respondent will commit an act of abuse against the person seeking to be protected”.3
Again, the court had to be satisfied that the granting of the order was “appropriate in the circumstances”. An “act of abuse” was defined as meaning either an act of personal violence” or “act of family and domestic violence”.4
Acts of personal violence applied to persons not in family and domestic relationships and included assaults, causing bodily injury, kidnapping, deprivation of liberty, pursuing with intent to intimidate and threats.
Acts of family and domestic violence were confined to persons in family and domestic relationships, as defined by the Act. The relevant conduct included the behaviour captured by “an act of personal violence”, as well as damage to property, and, significantly “behaving in an ongoing manner that is intimidating, offensive or emotionally abusive towards the person”5. This marked a significant departure from the Act’s original requirement that there be an actual or apprehended “violent personal offence”. In his second reading speech of what would become the Acts Amendment (Domestic Violence) Act 2004, the Attorney-General, the Hon Jim McGinty MLA, as he then was, said:
“The Bill addresses deficiencies in the current legislative approach to domestic violence in Western Australia and recommends a number of changes to modernise and update the existing law to give greater protection to the victims of domestic violence.
The inclusion of emotional abuse is a new element, and acknowledges the insidious nature of this form of abuse and the effect it can have on the victim”.6
The amendments of July 2017 have once again made significant changes to violence restraining orders in Western Australia. The basic elements of the test introduced by the 2005 amendments have been retained, with the exception of the term “reasonably fears”, which has been replaced with “has reasonable grounds to apprehend”. There now exist, however, two types of VROs: ‘ordinary’ VROs and Family Violence Restraining Orders (FVROs).
Both ‘ordinary’ VROs and FVROs require that either the respondent has committed violence against the person seeking to be protected and is likely again to commit violence against that person or that there are reasonable grounds to apprehend that the respondent will commit violence against the person seeking to be protected. In the case of ‘ordinary’ VROs, the violence is to be “personal violence”, while FVROs apply to “family violence”.7 This mirrors the previous distinction between acts of personal violence and acts of family and domestic violence that was introduced in the 1 December 2004 amendments.
‘Ordinary’ VROs operate much in the same way as VROs for acts of personal violence under the scheme that existed from December 2004 – July 2017. They only apply to persons not in family relationships and the court must also be satisfied that the granting of the order is “appropriate in the circumstances”. “Personal violence” is defined in the same terms as “an act of personal violence”, as outlined above, with the exception of “stalking” replacing “pursuing”.
Conversely, FVROs apply to persons in family relationships, as defined by the Act. The Act states that a reference to family violence is a reference to:
- 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 member to be fearful.
The Act gives a non-exhaustive list of behaviour that may constitute family violence. In addition to behaviour described in the previous iteration of the act, new examples of behaviour include:
- repeated derogatory remarks against the family member;
- unreasonably denying financial autonomy;
- unreasonably withholding financial support;
- preventing the family member from making or keeping connections with the member’s family, friends or culture;
- distributing or publishing, or threatening to distribute or publish, intimate personal images of the family member;
- causing death or injury to an animal; and
- causing any family member who is a child to be exposed to the above behaviour.8
Importantly, the Act states that if the court is satisfied, it must make the order “unless there are special circumstances that would make the order inappropriate”.9 This reverses the Act’s existing proviso that the order be “appropriate in the circumstances”, and limits the court’s ability consider other matters, including the hardship caused to the respondent, when deciding whether to make the order. Overall, this makes it more difficult for a court to refuse an application for a FVRO as compared to an ‘ordinary’ VRO, or earlier VRO applications made on the basis of “an act of family and domestic violence”. As then Attorney-General the Hon Michael Mischin MLC stated in his second reading speech of what would become the Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016, this amendment would “narrow the grounds upon which a court may refuse to grant an FVRO”.10
What is apparent from these amendments is that the conduct that can give rise to a FVRO is extremely broad and non-specific, encompassing behaviour that is far removed from a “violent personal offence” or even “behaving in an ongoing manner that is intimidating, offensive or emotionally abusive towards the person”. The words “coerces or controls” are broad enough, in theory, to capture common behaviour in many relationships that is far removed from acts or threats of violence or the imposition of fear. This will invariably require that courts distinguish between acceptable and unacceptable coercion or control in the context of the relationship. The Hon Michael Mischin said of this amendment:
This reflects the contemporary understanding that coercion and control tend to be central, common features of family violence, which is often a “patterned crime” which may in some cases occur over a long period of time. The current definition, which focuses on an “act of abuse”, does not properly capture the true nature of this harmful behaviour.
The new definition of family violence includes a list of examples of behaviour that may constitute family violence. The list is non-exhaustive and is intended to serve as a guide to assist in investigations and deliberations in relation to this legislation”.11
FVROs must then involve the exercise of more judicial discretion in the identification of family violence, but less discretion in determining whether an order ought to be made, once family violence has been identified. The opposite is true of ‘ordinary’ VROs, which involve a narrowly defined list of behaviours but allow for a more robust consideration of other circumstances when deciding whether to make an order.
Legislative attempts to address behaviour particular to family and domestic violence have resulted in, among other things, the rapid expansion of conduct that may give rise to VROs. What was originally confined to actual or apprehended violent crime may now include, for example, financial coercion, social control and “revenge porn” in family relationships. As Staude DCJ found in the case of Walsh v Baron:
“…actual or apprehended violence (in the ordinary sense of the exercise of physical force to cause injury or damage) is no longer a necessary consideration”.12
The limiting of judicial discretion to refuse FVROs, while retaining the existing scheme for ‘ordinary’ VROs, suggests that FVROs ought to be easier to obtain. Other amendments to the Act, including the relaxation of rules of evidence in FVRO final order hearings,13 would appear to support this belief.
Historically, the majority of interim and final violence restraining orders have been made in circumstances of family and domestic violence.14 Given the many types of conduct that may be characterised as family violence and the narrow discretion to refuse such applications once family violence has been established, it is reasonable to expect that a large number of FVRO applications will be made and a high percentage of those will be granted.
The Restraining Orders Act is now, in many ways, unrecognisable from its original form. The amendments discussed truly only scratch the surface of the changes made throughout the Act. The practical, long-term effects of these most recent amendments remain to be seen at this stage, notably because the superior courts are yet to consider their effect. What is clear, however, is that litigants, lawyers and courts alike will have to navigate a new system that is, by its very invention, open to interpretation.
1. [Restraining Orders Act 1997, s 11.]↩
2. [Restraining Orders Act 1997, s 3.]↩
3. [Restraining Orders Act 1997, s 11A, as amended by Acts Amendment (Domestic Violence) Act 2004, s 11.]↩
4. [Restraining Orders Act 1997, s 6, as amended by Acts Amendment (Domestic Violence) Act 2004, s7.]↩
6. [Western Australia, Parliamentary Debates, Legislative Assembly, 2 June 2004, p3303c-3306a,  (Jim McGinty, Attorney General).]↩
7. [See Restraining Orders Act 1997 sections 5A, 6, 10D and 11A, as amended by Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016.]↩
8. [Restraining Orders Act 1997, s5 A(2), as amended by Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016, s 7.]↩
9. [Restraining Orders Act 1997, s 10D(2), as amended by Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016, s 14.]↩
10. [Western Australia, Parliamentary Debates, Legislative Council, 14 September 2016, p5933b-5938a,  (Michael Mischin, Attorney General).]↩
12. [Walsh v Baron  WADC 165, .]↩
13. [Restraining Orders Act 1997, s 44A, as amended by Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016, s 49.]↩
14. [Statistics provided by the Department of Attorney General to the Law Reform Commission indicate that from 2005 to 2012, between 53 and 59% of final and interim orders involve family and domestic violence, see Law Reform Commission of Western Australia, “Enhancing Family and Domestic Violence Laws: Discussion Paper”, Project No.104, December 2013, p 56.]↩