Conditions

  • Department of the Attorney General (WA), Equality before the Law: Bench Book (2009).

    Section 13.3.3 entitled ‘Restraining Orders’, contains practical points for judicial officers to consider in restraining order applications (particularly in relation to children). For example,

    • ‘When considering whether to make a violence restraining order, you should have regard to the need to ensure that children are not exposed to acts of family and domestic violence.
    • You should not assume that children who are not direct targets of violence want or will benefit from contact with the perpetrator of violence…
    • Be aware that restraining orders may be used by perpetrators of domestic violence as a way to control and punish the primary victim…
    • If an applicant has not contacted an external support agency prior to the application for a restraining order you may wish to let them know that such support is available. A list of agencies and organisations which help people who are at risk of family and domestic violence can be found at the end of this chapter.’
  • Judicial College of Victoria, Family Violence Bench Book (2014).

    Part 2.2.1.3 – ‘Duration of interim intervention orders’. The Bench Book notes –

    ‘As interim orders are designed to provide temporary protection until the court determines whether to make a final order, the court does not need to specify the duration of an interim order.

    Interim orders can be a source of frustration to respondents. While interim orders are necessary to ensure the safety of the protected person, the orders are usually made on limited evidence and impose significant restrictions on the respondent’s liberty until the application is finally determined. Courts should endeavour to dispose of intervention order proceedings in a timely manner, as these proceedings are frequently emotionally charged.’

    Part 2.2.3.2 discusses exclusion orders –

    ‘The VLRC Final Report expressed three reasons why courts should make exclusion orders:

    • it is fair that the perpetrator is excluded from the family home, rather than the victim. This reinforces the message that family violence is wrong and that perpetrators will be held accountable;
    • it is safer for the children of the relationship if they can remain in a familiar area and do not need to change schools;
    • family violence creates a high risk of women and children becoming homeless and suffering other economic and social disadvantages. Use of exclusion orders may reduce that risk and moves the burden of finding alternative accommodation onto the respondent’

    Furthermore, Part 2.2.3.3 notes that in Victoria, if a court intends to make an intervention order, the court is required to make enquiries regarding the respondent’s use of weapons, such as whether the respondent holds a firearms authority (see s 94 of the Family Violence Protection Act 2008 (Vic))

    Part 2.2.5.1 discusses the issue of undertakings. Various limitations of undertakings are noted (2.2.5.1) –

    • ‘breach of an undertaking is not an offence and the police cannot take any action on the basis of the breach. Often an affected family member will not understand this limitation and has a false expectation of the protection offered by an undertaking. This contributes to a low level of reporting of breach of undertakings;
    • an affected family member may be intimidated into accepting an undertaking even when it is against her interests. The undertaking can form another part of the control that a perpetrator of family violence seeks over the affected family member, and may make the legal system complicit in that violence;
    • undertakings are no more than a promise by the perpetrator to refrain from further family violence. Frequently, the perpetrator has previously made and broken promises to the affected family member not to be violent again;
    • there are some forms of undertaking in use that have a similar appearance to a court order which may blur the distinction between an order and an undertaking in the mind of an affected family member.’

    Advantages of undertakings were also discussed (2.2.5.2) -

    • ‘for some women, accepting an undertaking is the first step they are prepared to take. It may encourage a woman to seek an intervention order if the violence continues.
    • if there is not enough evidence to support an intervention order, an undertaking may be the next best alternative. A breach of an undertaking would be evidentiary support for a subsequent intervention order;
    • undertakings may be more appropriate for child respondents as it reduce the risk of juveniles being drawn into the criminal justice system.’
    Part 2.2.5.3 discusses the recommendations by the Victorian Law Reform Commission about the appropriate use of undertakings.
  • Judicial Commission of New South Wales, Local Court Bench Book (2017).
    Parts [25-000] – [25-240] deal with the conduct of Apprehended Violence Order (AVO) application proceedings. The Practical Notes contained in parts [80-500] and [81-000] deal respectively with evidence by domestic violence complainants and evidence from vulnerable persons. Local Court Practice Note No 1 of 2001 aims to ensure that all proceedings before the court are conducted in an efficient and expeditious manner and those who appear before the court do all they can to facilitate the just, quick and cost effective disposal of proceedings before the court. Local Court Practice Note No 2 of 2012 assists with procedural measures in AVO application proceedings.
  • King, Michael S, Solution-Focused Judging Bench Book (Australasian Institute of Judicial Administration and the Legal Services Board of Victoria, 2009).

    This bench book contains overviews of therapeutic jurisprudence and ‘solution-focused’ judging – see chapter 1. Also, an overview of the function of family violence courts is provided from pp 19-21. Chapter 4 deals with family violence (see from p 95). Relevantly, chapter 4 contains an overview of the difference between protection orders (under state law) and injunctions under the Family Law Act 1975 (Cth) (pp 113-114). Disadvantages of these injunctions, (including that they are difficult to enforce and police are generally less aware of their nature and effect), are noted. A breach of a protection order under state law is more likely to result in immediate arrest of the perpetrator. This ‘relieves the victim of expense and the responsibility of proving a breach to a court.’

    Inconsistencies between family law orders and state-based protection orders are discussed (pp 113-114). It is noted that some magistrates are reluctant to deal with intervention order applications where family law proceedings are on foot and also reluctant to use their powers to vary family law orders where an intervention order is made.

    Various problems with protection orders are discussed – ‘In some cases protection orders will not protect the victim from further abuse – such as where the perpetrator is familiar with the legal system, has no respect for the law, or is emotionally disturbed and/or volatile. Hiding away from the perpetrator or moving from the area may be the only protection realistically available for the victim. Additionally, some victims are reluctant to apply for an intervention order. The police or court system may have treated them insensitively when they previously sought help; past intervention orders may have been ineffective; they may not feel comfortable in telling their traumatic story to a court; or they may fear that the order may be a trigger for an escalation of the violence’ (p 114).
  • Magistrates Court, Queensland, Domestic and Family Violence Protection Act 2012 Bench Book (2017).
    This publication outlines the relevant law and suggested procedure for judicial officers (Magistrates; Acting Magistrates; Judicial Registrars; and Acting Judicial Registrars) who deal with applications under the Domestic and Family Violence Protection Act 2012; Domestic and Family Violence Protection Regulation 2012; and the associated Domestic and Family Violence Protection Rules 2014. Chapter 9 deals specifically with the naming of parties and the range of conditions that maybe appropriate to include in a Domestic Violence Order.