Australia
Attorney General Department (Cth) (2015) Family Law Council Report to the Attorney-General on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems: Interim Report – June 2015 (Terms 1 & 2).
See especially chapter 5 which considers ‘integrated multi-jurisdiction family violence courts’. It provides an overview of the protection order system as well as the application process for obtaining a protection order in each state and territory. Appendix C contains a table of relevant legislation and terminology in each jurisdiction.
Parenting orders: The Report provides an excellent summary of the issues that arise in practice relating to sections 68R and 68T Family Law Act 1975 (Cth). First, in relation to section 68R, they note that several stakeholders reported that some magistrates rarely apply s 68R in family violence hearings, or are reluctant to make family violence protection orders naming children where there are parenting orders in place. It cites a case study from Legal Aid Western Australia and concerns raised in a Victoria report. Second, in relation to section 68T, the Council also notes that concerns were raised as to the time limits imposed. It notes the report of the Australian and New South Wales Law Reform Commission’s consideration of these issues and their recommendations (pp. 40-42).
Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence – A National Legal Response (ALRC Report 114) 2010.
Many aspects of this report contain material relevant to domestic violence protection orders. Chapter 5 discusses the need for a ‘common interpretative framework’, in relation to definitions in family violence legislation with a view to increasing victim safety. Chapter 9 entitled ‘Police and Family Violence’ discusses police-issued protection orders (pp 368-371). Concerns with police-issued orders are discussed. Police duties to investigate/apply for a protection order are considered from pp 381-386. At p 420 consideration of ‘bail conditions and protection order conditions’. The Report notes that bail conditions and protection order conditions should be consistent because inconsistency increases confusion which increases the likelihood of breach. Chapter 11 considers protection orders and the criminal law. The Report notes that conditions prohibiting a respondent from locating or attempting to locate the victim are particularly important where victims are fleeing family violence, will not be appropriate in all cases (p 470-471) and notes that ‘no contact’ conditions ought to be minimised unless absolutely necessary, particularly in remote communities, so as to reduce the risk of unintentional breaches (p 471). Exclusion orders are considered from p 472. It was noted that exclusion orders are likely to be more effective and victims’ safety would also be increased if reasonable steps are taken to secure temporary accommodation for perpetrators (p 479-480). Issues relating to the method and quality of evidence given in protection order proceedings are considered from p 843-864. The use of undertakings is considered from p 864-869. Protection orders made by consent are considered from p 869.
Property: Chapter 16 discusses personal property directions in protection orders. The final report notes that ‘[m]ost state and territory family violence legislation provides for the recovery of personal property. This is usually achieved by giving a court the discretion to include specific conditions in the protection order to deal with property recovery’ (p 738). These conditions or orders made to enable a person to recover property in protection orders are referred to as ‘personal property directions’ here. The report discusses strategies to prevent inconsistencies between personal property orders under state and territory family violence legislation and ownership or possessory rights declared under Family Law Act property proceedings. In the Consultation Paper, the Commission set out two proposals to assist state and territory courts making protection orders to obtain information about, and consider, property orders made under the Family Law Act – thus avoiding inconsistencies between orders.
Parenting orders: Chapter 16 also examines ‘the way in which state and territory courts exercise jurisdiction under family violence legislation and the Family Law Act’. The Commission notes that section 68R is rarely used to revive, vary, discharge or suspend a parenting order because (p. 702):
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Judicial officers, lawyers, police and others involved in protection order proceedings may not be sufficiently aware of the existence, or understand the nature of section 68R;
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Some judicial officers, lawyers and police appear to consider that issues in relation to parenting orders should be a matter for federal family courts;
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Judicial officers may not have the information or evidence necessary to amend a parenting order; and
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Parties to proceedings may not have access to appropriate legal advice and other support before seeking to amend a parenting order.
The Commission concluded that ‘increasing and improving the use of section 68R in state and territory magistrates courts is necessary to fill a gap in the protection of victims of family violence caused by the interaction between family law and state and territory family violence legislation. In particular, section 68R is necessary to protect victims of family violence where violence arises or escalates after parenting orders have been made – for example, during handover arrangements. In such cases, if s 68R is not used to amend the parenting order, a victim of violence may need to go to a federal family court to seek an amendment to the parenting order as well as a state or territory magistrates court to see a protection order’ (p. 702).
Undertakings: 18.153 A person seeking a protection order may agree to withdraw his or her application on the basis that the person against whom the protection order is sought (the respondent) provides an undertaking. An undertaking is a promise to the court that a person will do, or refrain from doing, certain things. Usually, the undertaking will include the same types of conditions and prohibitions which could have been included in the protection order had it been issued. Undertakings may either be given orally by the respondent or the respondent’s lawyer, or given in writing and signed. It is also possible for both the applicant and respondent to give undertakings to the court.
18.156... unlike breach of a protection order, breach of an undertaking is not a criminal offence and cannot be enforced. Agreeing to an undertaking instead of pursuing an application for a protection order may, therefore, compromise the protection and safety of a victim of family violence... Stakeholders noted that victims of family violence who have accepted an undertaking often return to court to seek a protection order because the undertaking has been breached. In such cases, both the undertaking and the breach may be used as evidence in support of an application for a protection order.
18.157...there is concern that victims of family violence may be pressured into withdrawing an application for a protection order and accepting an undertaking, particularly where that party is unrepresented.
Recommendation 18-4 State and territory courts should require that undertakings by a person against whom a protection order is sought should be in writing on a standard form. The form should require each party to sign an acknowledgement that he or she understands that:
(a)
breach of an undertaking is not a criminal offence nor can it be otherwise enforced;
(b)
the court’s acceptance of an undertaking does not preclude further action by the applicant to address family violence; and
(c)
evidence of breach of an undertaking may be used in later proceedings.
Australian Law Reform Commission, Family Violence: Improving Legal Frameworks, Consultation Paper No 1 (2010).
The ALRC has examined property conditions in protection orders. The paper notes that family violence legislation in each of the states and territories allows the court to issue protection orders to prohibit a person entering or approaching the protected person’s residence. ‘With the exception of the ACT, this legislation states that the orders may cover a property in which the person against whom the order was made has a legal or equitable interest (exclusion orders). Most family violence laws provide for a court to make orders permitting an excluded person or victim of violence to gain access to the premises for the purpose of taking personal possessions, usually by an arrangement or in the company of police’. These are referred to as ‘personal property directions’ by the paper. The paper notes that personal property directions can interact with property proceedings where they:
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influence future property proceedings under pt VIII of the Family Law Act—for example, where a party gains possession of property pursuant to a personal property direction and no longer needs or wants to contest ownership in the family courts;
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are directly inconsistent with existing property orders made under the Family Law Act; and
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are used as an indication of possessory or ownership rights by a federal family court and thereby impact on the outcome of future property proceedings under the Family Law Act (p.430).
Bryant, Diana, ‘The Family Courts and Family Violence’ (Paper presented at the Judicial Conference of Australia Colloquium, Adelaide, 9-11 October 2015).
The paper focuses on the issue of family violence in parenting proceedings (not in property proceedings). Her Honour notes that the family courts are widely criticised for making orders which are inconsistent with family violence orders (see Victorian Royal Commission into Family Violence, South Australian Social Development Committee) but identifies that these criticisms overlook the complexity of the task posed to the family courts and the reasons why ss 68R and 68T of the Family Law Act are drafted the way they are (p.4).
She identifies that under federal legislation, a federal court can make orders for contact with are inconsistent with an existing family violence order and, if they do so, the family violence order is invalid to the extent of its inconsistency (s 68Q). If the parenting order is inconsistent with the family violence order, s 68P imposes a number of obligations as to what must be included in the judgment that accompanies the parenting order. Her Honour notes that, ‘[w]hile s 68P is relied upon from time to time, family violence orders in the majority of cases that come to the family courts either do not include the children as affected family members or, more frequently, include an exception for any orders made by the family courts’ (p.5).
Courts making or varying family violence orders may discharge or suspend existing orders made under the Family Law Act (s 68R). In interim family violence proceedings, the court can only vary or suspend, but cannot discharge, an order made under the Family Law Act (s 68T). Again, there are considerations that must be taken into account before making this order (s 68R(5).
The justification for ss 68R and 68T are elaborated upon by Her Honour at p.5:
‘Although the subject of criticism, there are reasons for permitting courts to make inconsistent orders. The clue to this is in s 68R(3), which limits the power of a court making a family violence order to vary, discharge or suspend a family court order unless it has material before it that was not before the court that made that order or injunction. That is perfectly sensible — when a violent incident occurs involving a family which has had parenting orders in place, then the state court making the family violence orders is, of course, going to have information available to it that was not available to the judge when the original order was made.
Similarly, when family violence orders are made, often on an interim basis, the family courts subsequently considering making parenting orders may well have evidence that was not before the court making the family violence order. This would often be the case, for example, where there is an order made by consent without an admission of the allegations upon which it is based’.
Conner, Dana Harrington, ‘Civil Protection Order Duration: Proof, Procedural Issues and Policy Considerations’ (2015) 24:2 Temple Political and Civil Rights Law Review 343.
This article gives extensive consideration to the debate around the duration of civil protection orders in the American context. See also from p 369, where the author discusses the appropriate duration of orders in relation to specific types of domestic and family violence behaviours. The article concludes – ‘A "one size fits all" solution to duration is enticing because it avoids many complicated issues related to enacting laws that both define duration and provide guidelines that judges will follow when fixing order length. ‘(pp 373-374).
Cordier, Reinie, Donna Chung, Sarah Wilkes-Gillan and Renée Speyer, ‘The Effectiveness of Protection Orders in Reducing Recidivism in Domestic Violence: A Systematic Review and Meta-Analysis’ (2019) Trauma, Violence & Abuse (advance)
This article reviews the Australian and international literature on the effectiveness of protection orders in domestic violence cases. It presents a systematic review and meta-analysis, and identifies the factors associated with an increased risk of reoffending following a protection order being issued. It also compares differences in violation rates reported by victims and police and discusses issues in how the effectiveness of a protection order is defined and measured across various studies, beyond simple recidivism. The article finds mixed evidence on their effectiveness: protection orders were not effective in completely preventing violence toward the victim but some groups do report reduced subsequent violence.
Croucher, Rosalind, ‘Family Law: Challenges for Responding to Family Violence in a Federal System’ in Alan Hayes and Daryl Higgins Families, Policy and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014) 207.
This essay discusses (among other things) the interaction between state and territory-based civil protection orders and the Family Law Act 1975 (Cth), particularly in relation to children and child protection issues. See especially from p 209.
Douglas, Heather and Robin Fitzgerald, ‘Legal Processes and Gendered Violence: Cross-Applications for Domestic Violence Protection Orders’ (2013) 36(1) University of New South Wales Law Journal 56.
This article gives extensive consideration to the issue of cross-applications for domestic violence protection orders. It firstly considers feminist jurisprudence in the context of the development of the civil protection order system, particularly focusing on the issue of cross-applications. The complexities around the use of cross-orders are noted – ‘a cross-order means much more than that the parties simply have a protective order. It has implications for the residence of children, engagement with the criminal justice system and most importantly victim safety’ (p 86).
Dowling, Christopher, Anthony Morgan, Shann Hulme, Matthew Manning and Gabriel Wong, Protection orders for domestic violence: A systematic review (Australian Institute of Criminology Report No. 551 June 2018).
Report abstract:
Protection orders are a common legal response to domestic violence which aim to prevent further re-victimisation by the perpetrator.
The current study systematically reviews research into the use and impact of protection orders, using the EMMIE framework (Effectiveness, Mechanisms, Moderators, Implementation and Economy).
Meta-analysis is used to examine the overall effect of protection orders, while narrative synthesis is used to examine the underlying mechanisms and moderators of their effectiveness, their implementation and economic viability.
Protection orders are associated with a small but significant reduction in domestic violence. They appear to be more effective under certain circumstances, including when the victim has fewer ties to the perpetrator and a greater capacity for independence, and less effective for offenders with a history of crime, violence and mental health issues.
Fitzgerald ,Robin and Heather Douglas, The Whole Story: The Dilemma of the Domestic Violence Protection Order Narrative, The British Journal of Criminology, Volume 60, Issue 1, January 2020, Pages 180–197, https://doi.org/10.1093/bjc/azz043.
This article examines the role the quality of narratives of victim experiences of domestic and family violence prepared in support of applications for protection orders plays in the success of protection order applications. It found that where victims prepare their own narrative accounts of their experiences of domestic and family violence in support of their applications for protection orders a lack of structure and quality is correlated with a lack of success in obtaining a protection order:
“Our study shows that the way the narrative is constructed influences the results of the application, with success much more strongly associated with applications prepared by police.”
Gelb, Karen, ‘Understanding Family Violence Court Proceedings: The Impact of Family Violence on the Magistrates’ Court of Victoria’ (2016) Karen Gelb Consulting.
This report prepared for the Victorian Royal Commission into Family Violence contains data from family violence matters arising out of a study conducted in various Magistrates’ Courts in Victoria. See especially from p 38, which summarises and discusses the data. Gelb notes that while the most common outcome is that the court issues an intervention order, many adjournments are still made. Gelb identifies that adjournments are often made to synchronise the civil matter with an associated criminal matter or, ‘to allow police to undertake further discussions with the affected family member, to find out about related custody matters, or to provide more information on the precise circumstances of the incident’ (p 40). Gelb notes that, ‘The use of adjournments for either purpose may be problematic, both for the court (in terms of requiring additional court resources when matters are relisted) and for the parties (especially the affected family member, who must return to court time and again)’ (p 40). Gelb observed that most orders where respondents were present in court were finalised by consent (p 38).
Jeffries, Samantha et al, ‘Protecting Australia’s Children: A Cross Jurisdictional Review of Domestic Violence Protection Order Legislation’ (2015) 22(6) Psychiatry, Psychology and Law, 800-813.
This article argues that domestic violence protection order legislation may offer an important legal option for the protection of children affected by domestic violence. The article reviews the provisions of State and Territory domestic violence protection order legislation to consider the focus on the protection of children and concludes that ‘protection depends on the jurisdiction in which the child lives’ (p 812).
See in particular at p 804 – ‘Domestic violence protection orders offer a critical civil legal remedy for the protection of children at risk due to domestic violence. Protection orders have the potential to impact positively on the safety and welfare of children by providing non-violent caregivers and in some instances, other concerned parties (such as police and child protection workers), as well as the children themselves, a means of seeking legally enforceable protection’.
Jeffries, Samantha et al., ‘Australian Domestic Violence Protection Order Legislation: A Comparative Quantitative Content Analysis of Victim Safety Provisions’ (2013) 25(2) Current Issues in Criminal Justice 627.
This article uses comparative quantitative content analysis to assess the victim safety focus of domestic violence protection order legislation in each Australian state and territory. The authors consider four ‘dimensions’ of victim safety: protective scope of the legislation; specified matters to be considered by the court; procedural mechanisms and order options. The authors note that emergency orders of short duration with a limited range of conditions provides victims with less protection than orders in force for extended periods with unrestricted conditions that can be better suited to the individual circumstances of the case (p 634). The findings of the study are discussed at pp 637-638.
Jordan, Carol, Adam J Pritchard and Pamela Wilcox (2008) ‘The denial of emergency protection: Factors associated with court decision making’, Violence and Victims 23(5):603-16, doi: 10.1891/0886-6708.23.5.603
This American study examines cases where victims of intimate partner violence are denied access to temporary orders of protection. The study sample included a review of 2,205 petitions that had been denied by a Kentucky court during the 2003 fiscal year. The study offers important insights into the characteristics of petitioners and respondents to denied orders and outlines individual, contextual, structural, qualitative/perceptual, and procedural factors associated with the denial of temporary or emergency protective orders.
Law Reform Commission of Western Australia, Enhancing Family and Domestic Violence Laws (Final Report 2014).
In its Discussion Paper (at pp121-123) the Commission referred to a number of concerns among stakeholders in relation to undertakings. Undertakings are promises by one party (or sometimes both parties) not to behave in a particular manner and are sometimes entered into by parties in lieu of a final violence restraining order. An undertaking may contain the same types of conditions as would ordinarily be included in a violence restraining order. There is nothing in the Restraining Orders Act that deals with undertakings and, although they can be made orally or in writing, the Commission understands that, generally, undertakings in Western Australia are made in writing. There is no sanction for failing to comply with this type of undertaking and they are not enforceable by the police. However, a breach of an undertaking may be evidence to support a future application for a violence restraining order.
There was significant concern expressed during consultations that victims of family and domestic violence are being pressured into accepting undertakings instead of proceeding with their application for a violence restraining order. This pressure may arise because of a fear of or lack of understanding of the process or because the applicant is unrepresented. It was suggested that pressure to enter into undertakings is sometimes applied by the magistrate because of workload and court listing demands.
Mackay, Erin, Althea Gibson, Huette Lam, David Beecham, Perpetrator interventions in Australia: Part one – Literature review (ANROWS, 2015).
This paper provides detailed discussion on perpetrator pathways in every state and territory in Australia. Civil protection orders are discussed at pp 3-4. Care should be taken as some jurisdictions have updated legislation since this resource was published.
Meyer, Silke & Rose Stambe (2022) Increasing compliance with domestic violence protection orders: investing in perpetrator education and support as an investment in victim and family safety, Policing and Society, 32:9, 1071-1086, DOI:10.1080/10439463.2021.2016756
Abstract: Domestic Violence (DV) is a persistent public health issue of global proportions affecting an estimated one in four women worldwide. Civil protection orders or domestic violence orders (DVO) are a legal tool used in many jurisdictions, including Australia, to hold the alleged perpetrators accountable and improve the safety of victims. However, the research on the effectiveness of these orders are mixed and perpetrator non-compliance with such orders continues to be a concern. Few studies examine the situational factors that impact compliance with orders, especially in relation to service engagement and support needs of perpetrators of DV during and beyond the protection order court process. Our study uses focus group data to explore the perceptions of police officers (n = 16) and prosecutors (n = 3) involved in policing and prosecuting DV and the compliance with relevant protection orders in two court districts in Queensland, Australia. Alleged perpetrators’ comprehension of their order conditions and intersecting experiences of social disadvantage and complex needs emerged as key factors influencing compliance, along with the role of timely engagement with alleged perpetrators during the court process to maximise respondent comprehension of order conditions and engagement with available and relevant support services. In concluding, we highlight the importance of protective and preventive aspects of the DVO process that combine holistic wraparound support with perpetrator accountability in order to maximise perpetrator compliance and thus victim and family safety.
New South Wales Legislative Council Standing Committee on Social Issues, Domestic Violence Trends and Issues in NSW (Report 46, 2012).
Chapter 9 extensively considers protection orders (known as apprehended domestic violence orders (ADVOs). ADVO conditions are considered from pp 250-260. It was noted that some ADVO conditions are unworkable and exclusion orders are often problematic. Moreover, where an ADVO is accompanied by an associated criminal charge there are often delays before the order is finalised, in which time the parties may have reconciled and it may not be appropriate to make the conditions of the final order the same as the interim order. Exclusion orders are considered from pp 254-256. Strategies to improve the effectiveness of ADVO conditions are considered at p256-257. These strategies include tailoring conditions to suit individual circumstances. The report notes that the response to domestic violence should be victim-centric, while at the same time ensuring that ADVO conditions are workable (p 258). It notes that impracticable ADVO conditions could be avoided using greater consultation with the respondent. Even a short conversation with the respondent may be sufficient (p 259).
Reeves, E. ‘I’m Not at All Protected and I Think Other Women Should Know That, That They’re Not Protected Either’: Victim–Survivors’ Experiences of ‘Misidentification’ in Victoria’s Family Violence System. (2021) 10 (4) International Journal for Crime, Justice and Social Democracy 39-51.
This article explores the impacts of misidentification on the lives of women victim–survivors of family violence in Victoria (Australia. Using data from interviews with 32 system stakeholders and survey responses from 11 women who have experienced misidentification in Victoria, this study explores misidentification within the family violence intervention order system. It demonstrates that being misidentified as a predominant aggressor on a family violence intervention order can have a significant impact on women’s lives and their access to safety, highlighting the need for improved policing and court responses to the issue beyond existing reforms.
Reeves E (2023) ‘A culture of consent: Legal practitioners’ experiences of representing women who have been misidentified as predominant aggressors on Family Violence Intervention Orders in Victoria, Australia’, Fem. Leg Stud 31:369-390, doi: 10.1007/s10691-022-09506-5.
Abstract (abridged): This article explores 18 legal practitioners’ experiences of representing misidentified clients in the civil protection order system in the Australian state of Victoria. The findings suggest that legal practitioners face a number of challenges when representing clients who have been misidentified and that the magistrates’ courts are ill-equipped to respond to misidentification. As a consequence, a culture of respondents consenting to orders that should never have been made against them is maintained. This article calls for a greater focus on the role that the courts can play in providing a ‘safety net’ for victim-survivors who have been misidientified.
Roberts, James C, Loreen Wolfer and Marie Mele (2008) ‘Why victims of intimate partner violence withdraw protection orders’, Journal of Family Violence 23(5):369-375.
In this American study 55 women who were in the process of withdrawing a protection order against a male intimate partner were surveyed. Recognising that reasons given for withdrawing a protection order often follow common themes, individual responses were organised into several ‘domains’, or groupings of such reasons. The most commonly cited domain involved a ‘concrete change’ on behalf of the victim or defendant, which made the protection order less necessary in the victim’s view. This was closely followed by the domain addressing emotional attachment to the abuser. Implications for future research and policy are discussed. See in particular at p. 373 - ‘Taken together, these findings suggest that, among this sample of women, concrete change (especially the defendant actually attending counselling or rehabilitation) and emotional attachment (especially no longer fearing the defendant) interacted to create a push/pull relationship between the offender and victim where the victim’s faith in programs aimed at helping batterers overcome their abusive behaviour and the victim’s emotional attachment to the offender lead the victim to no longer feel that the (protection order) was necessary.’
Ross, S and Aitken S (2022) ‘“If it hadn’t been online I don’t think I would have applied”: Applicant experiences of an online Family Violence Intervention Order process’, Journal of Interpersonal Violence 37(1-2):221-238, doi: 10.1177/0886260520907367
Abstract (abridged): This study examined the experiences of applicants who used either a conventional court process or an online application process that was trialled in three courts in Victoria, Australia. We also examined the impact of the online process on court workloads and risk assessments and conducted interviews and focus groups with magistrates and registry staff at each of the three trial locations. Compared with the court registry process, the online application was rated as simpler and easier to understand and less stressful. Online applicants also reported that the application process was more accessible and enhanced their sense of agency. The online application process also reduced the workload of court staff and resulted in faster case processing, with online applicants reaching the court hearing stage nearly two weeks earlier than paper-based applicants. However, we did not find that the online application process provided earlier or better risk identification.
Special Taskforce on Domestic and Family Violence in Queensland, Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland (2015).
Several sections in this report consider issues relevant to protection orders made in Queensland. The report noted that in considering whether to make or vary a domestic violence order, magistrates have power under s 78 of the Domestic and Family Violence Protection Act 2012 (Qld) to ‘revive, vary, discharge or suspend a family law order allowing contact between a respondent and child that may be restricted under the proposed Domestic Violence Order’ (p. 270). Of particular relevance, the report considers the use of ouster conditions at pp 297-298. Ouster conditions in domestic violence orders prohibit the respondent from remaining, entering or being within a stated distances of stated premises.
Information sharing: Information sharing is a critical part of an integrated response to domestic and family violence. The report notes that ‘[t]he ability for different agencies to discuss cases and share relevant details on an ongoing basis is at the core of coordinating a tailored response to a person’s individual circumstances. Effective and efficient information sharing ensures that victims of domestic and family violence do not have to re-tell their stories repeatedly to different service providers and enables service providers to provide timely responses, particularly in high-risk cases’ (p 230). While there are clear benefits to information sharing, there is a need to ensure sufficient safeguards are in place to protect confidentiality (p 231). Unnecessary or inappropriate sharing of information could have negative consequences including: ‘destroying relationships of trust between a service provider and a client, leading to disengagement of a client, becoming a barrier to victims’ willingness to seek help (p 231). Similarly, “information can be untested or based on service provider opinion and could be highly prejudicial to one or both of the parties if used inappropriately in legal proceedings (p 231).
Stambe, R.-M., & Meyer, S. (2022). Police and Duty Lawyer Perceptions of Domestic Violence Protection Order Proceedings Involving Parents: Towards Greater System Accountability and Family-Centred Decision-Making. Journal of Family Violence. https://doi.org/10.1007/s10896-022-00449-8.
Abstract
Purpose: Domestic violence (DV) is a problem of global significance and remains a gendered issue that disproportionately affects women and children. Prevalence studies on women’s experiences of DV suggest that around 50% of victims identify as mothers. The effects of DV on mothers and children are well documented, raising implications for their protection. Civil protection orders are a legal tool used to reduce and prevent experiences of DV. Research on protection order effectiveness is mixed with research suggesting that the ongoing relationship between a respondent and aggrieved parent around child contact presents ongoing opportunities for re-victimization. This study contributes to the scant literature on the implications of protection orders on parental responsibilities.
Method: The study draws on surveys with duty lawyers and focus groups with police officers. A thematic analysis was used to examine perceptions and experiences of ‘no contact’ protection orders and respondent parent non-compliance where mutual children are involved.
Results: Findings suggest that ambiguous ‘no contact’ conditions and a lack of clarity around their implications for child contact play a key role in respondent parent non-compliance, ranging from uninformed non-compliance to the strategic use of children as a form of coercive control in non-compliance.
Conclusion: Findings raise implications for specialist legal advice and support for parents affected by DV to sit alongside protection order court proceedings. Findings highlight the need for greater system accountability to ensure court-issued protection orders take a family-centred approach that align with parental responsibilities and ensure child and adult victims’ safety and wellbeing.
Teperski, A and S Boiteux (2023) The long and short of it: The impact of Apprehended Domestic Violence Order duration on offending and breaches (Crime and Justice Bulletin No. 261) Sydney: NSW Bureau of Crime Statistics and Research.
Abstract extract: Drawing on a dataset of 13,717 defendants who were placed on an ADVO after a DV incident between January 2016 and April 2018 was extracted from the NSW Bureau of Crime and Statistics and Research’s ADVO database. This included 10,820 defendants subject to a final 12-month order, and 2,897 defendants subject to a final 24-month order... [researchers found]... relative to 12-month ADVOs, 24-month ADVOs were associated with an increase in the probability that an offender breaches the conditions of the ADVO, and a decrease in the probability that an offender commits a proven DV offence
Undertakings are dealt with at pp 296-303 of the report. Note that Victorian legislation does not include any provisions regarding the use of undertakings.
8.126 Under the current intervention order system, applicants for intervention orders are sometimes persuaded by the magistrate, the respondent’s lawyer or their own lawyer to accept an undertaking from the perpetrator rather than go ahead with an application for an intervention order. When respondents make an undertaking to the court, they agree to refrain from behaving in a certain way, such as assaulting, harassing, or threatening the protected person. The Act does not provide for the respondent to give an undertaking as an alternative to the court making an intervention order. If respondents breach an undertaking, they have not committed an offence and the police cannot take any action unless another criminal offence has been committed.
Recommendations:
99. The Magistrates’ Court Protocols should state that an undertaking should only be accepted by the court where the court is satisfied that:
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the applicant fully understands the consequences of accepting an undertaking (e.g. if the applicant has received legal advice or is legally represented);
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in all the circumstances of the case, it is more appropriate to accept an undertaking rather than make an intervention order.
100. The Magistrates’ Court Protocols should state that when deciding whether it is appropriate to accept an undertaking, the court should have regard to:
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the respondent’s age (i.e that an undertaking may be more appropriate where the respondent is under 18 years);
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the nature of the violence perpetrated by the respondent, as disclosed in the application; and
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whether making an intervention order with a condition that the respondent not assault or harass the applicant as the only condition is more appropriate in all the circumstances of the case, rather than accepting an undertaking.
Chapter 7 discusses information sharing in relation to family and domestic violence generally. The Report notes that legislation alone will not create a culture of information sharing throughout the family violence system. Further, chapter 16 of the report discusses court-based responses to family violence in Victoria. Of particular relevance, the report discusses the limitations on information sharing between courts and other parts of the family violence system.
Victorian Royal Commission into Family Violence, (Volume 3, 2016).
This report contains extensive discussion of protection orders. See in particular from p 120 which discusses the ‘applicant experience’. Relevantly, delays in the protection order application process, particularly for interim orders, are considered from p 122. It was noted that initial delays in applications for interim orders can have detrimental effects on applicants such as an immediate and serious risk to the applicant’s safety – ‘To the extent that applying for an FVIO might signify a victim’s recognition that they are in danger and be a definitive step towards ending or altering a violent relationship, the application period will be a time of heightened risk for the applicant. During this period the victim does not have the protection of an intervention order and might not have had contact with police or specialist services’ (p 123). Delays caused by respondents are discussed at p 124. Often, there are legitimate reasons for delays caused by respondents to protection order applications – ‘Delays can be caused by the perpetrators lawful assertion of procedural rights; for example, it is not uncommon for the respondent to seek “further and better particulars” about the application and to be given the opportunity to consider those particulars. There may need to be an adjournment to allow the applicant to respond to that request’ (p 124). However, sometimes respondents abuse processes and cause delays without legitimate reasons. For example, respondents could make a cross-application without legitimate reasons (p 124). Other tactics include failing to appear at hearings, evading service of orders and seeking adjournments at short notice. The report observed that these tactics ‘are part of the violence perpetrated against the victim and are calculated to terrorise, disempower, humiliate and undermine the victim’s attempts to protect herself (or himself) and other family members’ (p 125). Furthermore, delays associated with parallel criminal proceedings are discussed from pp 126-127. Police applications for intervention orders are discussed at pp 128-129.
Wangmann, Jane, ‘Gender and Intimate Partner Violence: A Case Study from NSW’ (2010) 33(3) University of New South Wales Law Journal 945.
This article considers the issue of gender and its importance in understanding intimate partner violence (IPV) through an examination of the differences in men’s and women’s complaints for civil protection orders in New South Wales (known as Apprehended Domestic Violence Orders or ADVOs). This research focused on cross applications, that is, cases where the male and the female partner to a relationship are both making allegations that the other has used violence or abuse against them’ (p 947). The case study of cross-applications in New South Wales at the problems with seeing domestic violence as discrete incidents, rather than the context of such acts of violence or abuse’ (p 947).
Wilcox, Karen and Ludo McFerran, ‘Staying Home, Staying Safe: the Value of Domestic Violence Protection Order Provisions in Homelessness Strategies’ (2009) 294 Australian Law Reform Commission Journal 24.
This article considers the legal framework and broader relationship between homelessness and domestic violence. In doing so, it considers two provisions in protection order legislation which impact on homelessness – exclusion/ouster orders and court-ordered changes to residential tenancy agreements. Notes the concern about the property rights and accommodation needs of the defendant as well as ‘deferral of occupancy issues to property settlements under family law, or a belief that exclusion is only warranted when the violence was physical…Community beliefs about ‘rights’ to real property has complicated the issue further’ (p 25). The authors note that if exclusion orders are to be effective in safeguarding victims’ safety and preventing homelessness, there is a need for a supportive service system, including funding for practical security measures in houses (p 26).
Zoellner, Lori et al, ‘Factors Associated With the Completion of the Restraining order Process in Female Victims of Partner Violence’ (2000) 15(10) Journal of Interpersonal Violence 1081.
This American study examined factors associated with completion of this process. Sixty-five women who initiated the process of securing a restraining order against a male partner participated in the study. Participants completed an interview, self-report measures, and were followed up to determine final restraining order status. Less than half of the women who initiated the process obtained final orders. Women who indicated an attachment to the abusive partner were less likely to complete the process. “Perceived threat to the women facilitated persistence with the process; however, when the threat involved her children, women were less likely to persist. Understanding factors influencing persistence in help seeking, especially attachment and threat, is a crucial step toward enhancing interventions to facilitate efforts toward violence-free lives” (p 1081).
Where a self-represented perpetrator wishes to cross-examine the victim, the victim’s capacity to give evidence or the quality of the victim’s evidence in these circumstances may be compromised by the victim’s fear of the perpetrator and, as a consequence, the probative value of the evidence may be diminished or negated.
In some cases a perpetrator may even choose to be self-represented hoping to secure the opportunity to directly cross-examine the victim.
These scenarios should be understood in the context of the complex dynamics of domestic and family violence characterised by a pattern of abusive behaviour involving a perpetrator’s exercise of control over the victim, often for an extended period. Where a self-represented perpetrator uses direct cross-examination to further abuse the victim through court processes, the victim may experience a form of secondary abuse. Recent changes to state and territory legislation address this issue, by, in certain circumstances, restricting a perpetrator’s right to directly cross-examine the victim in domestic and family violence related court proceedings. The nature and extent of these restrictions vary across the state and territory jurisdictions, as summarised below.
State/Territory | Legislation | Section | Restriction on cross-examination |
|---|---|---|---|
Australian Capital Territory | 63 | Under s 63(2), a self-represented respondent cannot examine an affected person personally in a proceeding for a family violence order. An affected person includes any child who hears, witnesses or is otherwise exposed to family violence committed against another person. Under s 63(4)(a), the court may appoint a person to examine an affected person on the respondent’s behalf. | |
New South Wales | 41A | Under s 41A (1), a child witness in apprehended domestic violence order proceedings cannot be questioned directly by the defendant. The child can only be questioned by a legal practitioner or a suitable person appointed by the court. | |
289VA and 289T | In circumstances where a person accused of a domestic violence offence is not represented by a legal practitioner a complainant cannot be directly examined by the accused. The court may appoint another person to carry out the examination. This applies to apprehended violence order proceedings but only when the defendant in the proceedings is charged with a domestic violence offence. | ||
Northern Territory | 114 | Under s 114(2) a self-represented defendant is not entitled to question a witness who is in a domestic relationship with the defendant unless the court grants leave. The court will not grant leave if the witness is a child or has a cognitive impairment (s 114(3)). Per s 114(4), leave will not be granted unless the court is satisfied that the witness’s ability to testify will not be adversely affected. In making this assessment, the court will have regard to any trauma or distress that could be caused (s 114(5)). Under s 114A(3)(b), the Court may determine to appoint a legal practitioner to cross-examine the witness for the defendant. | |
Queensland | 151 | Under s 151(2), the court may order that an unrepresented respondent may not cross-examine a protected witness in person if the court is satisfied that the cross-examination is likely to cause the protected witness to- Suffer emotional harm or distress; Be so intimidated as to be disadvantaged as a witness. Under s 151(3), if the protected witness is a child, the court must make an order that the unrepresented respondent may not cross-examine the child in person. | |
South Australia | 29 | Under s 29(4)(b), the defendant cannot directly cross-examine a person against whom it is alleged they have committed, or might commit, an act of abuse or a child exposed to the effects of an alleged act of abuse by the defendant. Cross-examination is to be by the defendant’s counsel, or if unrepresented, the defendant must submit their proposed questions of the witness to the Court, and the Court will ask the witness such questions as the Court determines allowable. See also section 13B Evidence Act 1929 (SA). | |
Tasmania | 31 | S 31(2B) provides that s 8A of the Evidence (Children and Special Witnesses) Act 2001 applies to the cross-examination of an alleged victim in a proceeding for a family violence offence. Under s 8A, an unrepresented defendant cannot cross-examine an alleged victim in these circumstances. | |
Victoria | 70 | Under s 70(3) a protected witness cannot be personally cross-examined by the respondent unless The protected witness is an adult; and The protected witness consents to being cross-examined by the respondent; and If the protective witness has a cognitive impairment, the court is satisfied the protected witness understands the nature and consequences of giving consent; and The court decides that it would not have a harmful impact on the protected witness. | |
Western Australia | 44C and 53D | Under s 44C, an unrepresented respondent cannot directly cross-examine a person with whom they are in a family relationship or imagined personal relationship. The unrepresented respondent may put the question to a judicial officer or a person approved by the Court who is to repeat the question to the person being cross-examined. Under s 53D, an unrepresented person cannot directly cross-examine a child who has given oral evidence. The unrepresented person may put the question to a judicial officer or a person approved by the Court who is to repeat the question to the child. |
Where a self-represented perpetrator wishes to cross-examine the victim, the victim’s capacity to give evidence or the quality of the victim’s evidence in these circumstances may be compromised by the victim’s fear of the perpetrator and, as a consequence, the probative value of the evidence may be diminished or negated.
In some cases a perpetrator may even choose to be self-represented hoping to secure the opportunity to directly cross-examine the victim.
These scenarios should be understood in the context of the complex dynamics of domestic and family violence characterised by a pattern of abusive behaviour involving a perpetrator’s exercise of control over the victim, often for an extended period. Where a self-represented perpetrator uses direct cross-examination to further abuse the victim through court processes, the victim may experience a form of secondary abuse. Recent changes to state and territory legislation address this issue, by, in certain circumstances, restricting a perpetrator’s right to directly cross-examine the victim in domestic and family violence related court proceedings. The nature and extent of these restrictions vary across the state and territory jurisdictions, as summarised below.
State/Territory | Legislation | Section | Restriction on cross-examination |
|---|---|---|---|
Australian Capital Territory | 63 | Under s 63(2), a self-represented respondent cannot examine an affected person personally in a proceeding for a family violence order. An affected person includes any child who hears, witnesses or is otherwise exposed to family violence committed against another person. Under s 63(4)(a), the court may appoint a person to examine an affected person on the respondent’s behalf. | |
New South Wales | 41A | Under s 41A (1), a child witness in apprehended domestic violence order proceedings cannot be questioned directly by the defendant. The child can only be questioned by a legal practitioner or a suitable person appointed by the court. | |
289VA and 289T | In circumstances where a person accused of a domestic violence offence is not represented by a legal practitioner a complainant cannot be directly examined by the accused. The court may appoint another person to carry out the examination. This applies to apprehended violence order proceedings but only when the defendant in the proceedings is charged with a domestic violence offence. | ||
Northern Territory | 114 | Under s 114(2) a self-represented defendant is not entitled to question a witness who is in a domestic relationship with the defendant unless the court grants leave. The court will not grant leave if the witness is a child or has a cognitive impairment (s 114(3)). Per s 114(4), leave will not be granted unless the court is satisfied that the witness’s ability to testify will not be adversely affected. In making this assessment, the court will have regard to any trauma or distress that could be caused (s 114(5)). Under s 114A(3)(b), the Court may determine to appoint a legal practitioner to cross-examine the witness for the defendant. | |
Queensland | 151 | Under s 151(2), the court may order that an unrepresented respondent may not cross-examine a protected witness in person if the court is satisfied that the cross-examination is likely to cause the protected witness to- Suffer emotional harm or distress; Be so intimidated as to be disadvantaged as a witness. Under s 151(3), if the protected witness is a child, the court must make an order that the unrepresented respondent may not cross-examine the child in person. | |
South Australia | 29 | Under s 29(4)(b), the defendant cannot directly cross-examine a person against whom it is alleged they have committed, or might commit, an act of abuse or a child exposed to the effects of an alleged act of abuse by the defendant. Cross-examination is to be by the defendant’s counsel, or if unrepresented, the defendant must submit their proposed questions of the witness to the Court, and the Court will ask the witness such questions as the Court determines allowable. See also section 13B Evidence Act 1929 (SA). | |
Tasmania | 31 | S 31(2B) provides that s 8A of the Evidence (Children and Special Witnesses) Act 2001 applies to the cross-examination of an alleged victim in a proceeding for a family violence offence. Under s 8A, an unrepresented defendant cannot cross-examine an alleged victim in these circumstances. | |
Victoria | 70 | Under s 70(3) a protected witness cannot be personally cross-examined by the respondent unless The protected witness is an adult; and The protected witness consents to being cross-examined by the respondent; and If the protective witness has a cognitive impairment, the court is satisfied the protected witness understands the nature and consequences of giving consent; and The court decides that it would not have a harmful impact on the protected witness. | |
Western Australia | 44C and 53D | Under s 44C, an unrepresented respondent cannot directly cross-examine a person with whom they are in a family relationship or imagined personal relationship. The unrepresented respondent may put the question to a judicial officer or a person approved by the Court who is to repeat the question to the person being cross-examined. Under s 53D, an unrepresented person cannot directly cross-examine a child who has given oral evidence. The unrepresented person may put the question to a judicial officer or a person approved by the Court who is to repeat the question to the child. |