All’s Fair in Love and War? – Is a FVRO a weapon in the arsenal for a Family Law Fight?

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In July 2017 the Restraining Orders Act 1997 was amended to introduce the ‘Family Violence Restraining Order’. Largely in response to political pressure, the protections for potential victims have been significantly increased. As a result of fallout from the horrendous outcomes in the past in relation to Family Violence for which Rosie Batty has been a vocal campaigner, the protections for potential victims have been significantly increased.

Well, that is not strictly true. The protections themselves have not been increased. The main features of a restraining order remain unchanged. What has changed however is the criminal implications of a breach and the focus of this piece, the ease in which a litigant can get such an order.

The applicant must be able to demonstrate to the court that they have been a victim of family violence, and that they reasonably apprehend that they may be such a victim again in the future. The significance here is the definition of Family Violence.

The definition of Family Violence is intentionally broad. Many would be aware how many different forms coercive and controlling behavior can take. The definition of Family Violence appropriately included behavior such as assault and sexual assault, but is also so broad as to include behavior such as:

  1. Stalking and cyber stalking;
  2. Repeated derogatory remarks;
  3. Damaging or destroying property;
  4. Unreasonably denying financial autonomy;
  5. Preventing the member from making or keeping connections with family.

While all of these behaviors can and often are ways in which an individual exerts unreasonable control over their victim of family violence, some of these behaviours could exist to varying extents in far more innocent circumstances.

Established principles of domestic or family violence would suggest that these behaviours are usually an issue where the primary purpose is to control the victim.

So what is the problem? Parties can apply for the order ex parte (without the other party present) in the first instance. The rules of evidence are relaxed at this first event. Some of these behaviours above have often existed in some way or form at some point, often in both directions. When the applicant is experiencing a point of animosity toward an ex-partner, it is perhaps tempting in some situations to remember just the one side of the story.

What we (as legal professionals) have already seen in these first few months since the introduction of the amendments in July, is that there is an increase in these orders being granted, in comparison to the old Violence Restraining Order (VRO). This is leading to issues where children are being prevented from seeing one parent or the other.

What now? The Family Court of WA we would imagine would be experiencing a correlated increase in applications arising out of FVROs, let alone the Magistrates Court. We have had several matters where interim orders (to deal with the time while awaiting a final hearing) for time to be spent by phone between a party and child, or some other orders in relation to the children, are being made. These interim orders sound distinctly like Family Court Orders.
What we would suggest on a policy level, is that these FVROs should be obtained in the Family Court. We expect that this has been avoided because the Family Court of WA is already hugely under resourced. That said, we imagine that these orders will have a significant impact on the Family Court in any event, when all of these matters eventually migrate over so that children can spend time with their parents again.

The Restraining Orders Act does consider that contact with the children is relevant, but where behavior which fits into the broad definition of Family Violence has occurred, and there is no reason to suggest that it may not occur again, the court must make the restraining order unless there are special circumstances that would make the order inappropriate. The current position is that there are no such special circumstances.

Further issues- in some situations we have seen the family relationship definition does not go far enough. What happens when the new partner of an ex spouse starts stalking the applicant? This is not included as a family relationship, but the sibling of an ex spouse would be.

We have also seen the partner of a mentally impaired person has used this new order to exclude that mentally impaired person’s family, ironically being an act that could constitute family violence itself.

It is important to remember that a restraining order does not solve underlining issues, it is a band aid for the symptoms, not a cure. There should be an attempt to resolve endemic family issues where there is going to be an ongoing relationship due to the children. Restraining Orders play a vitally important role, however applicants and respondents should consider whether the fight belongs in the Magistrates Court or if is it really a Family Law Matter and should be brought before the Family Law Court.

Author: Eleanor