Conditions

Australia

  • 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.
  • 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 367-371). 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 479-481). 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.
  • 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.
  • 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’.
  • 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.
  • Katzen, Hayley, ‘It's a Family Matter, Not a Police Matter: The Enforcement of Protection Orders’ (2000) 14 (2) Australian Journal of Family Law 119-141.
    This article considers police responses to breaches of protection orders that occur in the context of contact hand-overs. The study, upon which the article is based, found that officers rarely prosecute offenders for a violation of an order when it occurs during contact hand-overs. The article draws on data collected in the late 1990s: police reports of breaches of protections orders (n186); interviews with women (n32), focus groups with police (n33 police).
  • 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 (nā€‰=ā€‰16) and prosecutors (nā€‰=ā€‰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 by using greater consultation with the respondent. Even a short conversation with the respondent may be sufficient (p 259).
  • Queensland Government, Special Taskforce on Domestic and Family Violence in Queensland, Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland (2015).
    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).
  • Queensland Police Service, Australian Journal of Family Law The Domestic and Family Violence GPS-Enabled Electronic monitoring Technology, Evaluation Report, April 2019, Government of Queensland.
    This report presents the findings of a trial of GPS tracking for family violence offenders and victims in Queensland. The trial assessed the effectiveness, reliability and responsiveness of GPS-enabled technology to track an individual accurately and activate an alert in the event of a pre-programmed zone being breached. The GPS-enabled technology was tested in different geographical areas and with police personnel rather than actual offenders and victims. Thirty-five tests were carried out, with the technology failing to respond in 26% of cases. The technical issues are discussed in more detail. Overall, the findings demonstrate that electronic monitoring does not provide an effective risk-mitigating solution for high-risk perpetrators and is not a reliable substitute for perpetrator case management. However, it may be of use in some lower-risk cases, in conjunction with other measures. This trial was a suggestion of the 2015 Queensland Special Taskforce on Domestic and Family Violence, which noted how little was known about electronic monitoring programs.
  • 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.
  • Various tables summarising the position in each jurisdiction in relation to weapons, enforcement and information sharing, penalties and aiding and abetting are provided. See at pp 9, 11, 12, 15, 17 & 18. Care should be taken with this report as many jurisdictions have changed their legislation since this report was produced.
  • 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).

International

  • 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).
  • This American article extensively considers the nature and efficacy of civil protection orders in preventing domestic violence. It contains an overview and critique of civil protection orders. It then considers expanding the role of civil protection orders by offering protection orders that do not terminate the parties’ relationship. The article considers the use of protection orders in ongoing relationships (p 1551).
  • Jordan, Carol et al, ‘The Denial of Emergency Protection: Factors Associated with Court Decision Making’ (2008) 23 Violence and Victims 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.
  • Murphy, Jane C, ‘Engaging with the State: The Growing Reliance on Lawyers and Judges to Protect Battered Women’ (2003) 11(2) American University Journal of Gender, Social Policy and Law 499-521.
    Part II (p 503) of this article discusses battered women’s use of civil protection orders, drawing on a prior American study into the use of protection orders. The authors found that having an attorney substantially increased the rate of success in obtaining a protection order’ (p 511). Also, it was noted that a substantial sample of women surveyed considered filing for a civil protection order a ‘helpful strategy’ (p 509).
  • Roberts, James C, Loreen Wolfer and Marie Mele, ‘Why Victims of Intimate Partner Violence Withdraw Protection Orders’ (2008) Journal of Family Violence 23(5) 369-375.
    In this American study fifty-five women who were in the process of withdrawing a protection order against a male intimate partner were surveyed. Recognizing that reasons given for withdrawing a protection order often follow common themes, individual responses were organized 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 counseling 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 behavior and the victim’s emotional attachment to the offender lead the victim to no longer feel that the (protection order) was necessary.’
  • Occupation orders are the dedicated legal remedy through which victims of domestic abuse can be supported to remain in the family home following a relationship breakdown. Case law indicates, however, that victims experience barriers to securing orders due to the high threshold criteria and because concerns about protecting the rights of perpetrators has led to judicial reluctance to grant extensive protection to victims. The options for providing protection to victims of abuse in respect of the family home are shortly set to be reformed by the Domestic Abuse Act 2021, which creates a new Domestic Abuse Protection Order (DAPO). It is anticipated that DAPOs will be easier to secure because they will have a lower threshold criteria, they will be available in family, civil and criminal proceedings, and both victims and third parties will be able to make an application thereby alleviating the burden on victims who feel unable to take any action. Whilst there is no intention at this point to repeal occupation orders, the Home Office has acknowledged that ‘DAPOs will become the ‘go to’ protective order in cases of domestic abuse’ suggesting that occupation orders will be replaced by DAPOs in most cases.

    By drawing on data obtained from an analysis of court statistics, a questionnaire of legal practitioners and domestic abuse specialists, and in-depth interviews with victims of domestic abuse, this paper offers original empirical insights into where the current law fails victims of domestic abuse. The analysis reveals three key barriers to securing occupation orders. Firstly, despite the Legal Aid, Sentencing and Punishment of Offenders Act 2012 making efforts to preserve legal aid for victims of domestic abuse, the means test is difficult for victims to satisfy, resulting in increases both to the number of victims taking no action to pursue protection and who act as litigants in person in occupation order proceedings. Secondly, the prospects of a victim securing protection can be adversely affected by their unrepresented status. Thirdly, despite case law indicating a less restrictive approach to granting occupation orders, many victims continue to struggle to satisfy the strict threshold criteria. Some judges are seemingly willing to bypass this by granting alternative remedies which may offer victims a weaker form of protection in respect of the family home. Where orders are granted, the data suggest this is on restricted terms and for limited durations which reduce their effectiveness at preventing post-separation abuse and supporting victims to regulate their short and longer-term housing situation. These empirical findings are then situated within a discussion of the Domestic Abuse Act 2021. The authors analyse whether forthcoming DAPOs are likely to offer a more accessible and effective form of protection than occupation orders. The analysis suggests that by increasing the scope of applicants, the breadth and flexibility of available protection and the sanctions for breach, DAPOs have the potential to remedy many of the existing barriers to securing protection over the family home. As is always the case with new legislation however, the key will be in its implementation, to ensure that existing issues are not simply transferred across to the new regime. The findings are novel because academic commentaries on protective injunctions typically focus on ‘personal protection’ offered by non-molestation orders, domestic violence protection orders, and restraining orders, meaning that both occupation orders and protection for victims in respect of the family home are under-researched areas of domestic abuse.
  • This American article firstly considers the advantages and disadvantages of civil protection orders. It then discusses mutual orders (orders made against both the perpetrator and the victim of domestic violence). It concludes that mutual orders harm women, in contrast to ordinary protection orders which are effective. Concerns about mutual protection orders include due process issues, in particular where mutual orders are issued without hearing any evidence or only hearing evidence about the violent behaviour of one party (p 1056-1060). There are also concerns about the accountability of the perpetrator – ‘The issuance of a mutual order can reinforce the batterer's belief that the problem is not his but is the result of external factors. He could easily understand a mutual protection order to mean that the court blames the victim as much as the batterer. The implication is that there is no accountability by the batterer’ (p 1060-1061). The victim could also recognise this message and blame themselves for the abuse. Other concerns with mutual orders are discussed at pp 1061-1064.
  • 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).