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  • Writer's pictureSami Abbas

What Is ‘Family Violence’ in Restraining Order Trials

In Western Australia, restraining orders are a crucial tool for protecting individuals from various forms of abuse and violence. Since the introduction of the Family Violence Restraining Order (FVRO) on 1 July 2017, the legal landscape has provided clear guidelines for those seeking protection from family-related violence. Governed by the Restraining Orders Act 1997 (WA), FVROs are specifically designed to safeguard individuals experiencing abuse from family members or those in close personal relationships.


The Restraining Orders Act 1997 (WA) outlines three distinct types of restraining orders: Family Violence Restraining Orders (FVROs), Violence Restraining Orders (VROs), and Misconduct Restraining Orders (MROs). FVROs are tailored for individuals in domestic or intimate relationships, including married or de-facto partners, ex-partners, and other family connections. In Western Australia, where the person to be protected is a child, the application may be brought by a parent, guardian or welfare officer of the child on behalf of the child.[1]


On the other hand, VROs and MROs cater to situations involving non-family members such as colleagues, neighbours, or friends. VROs address serious acts of violence and abuse, while MROs focus on preventing public disturbances and nuisance behaviours.

To obtain any of these restraining orders, one must go through a formal court process where a Magistrate issues the order after a hearing. The applicant needs to demonstrate that an act of "family violence" or "personal violence" has occurred and is likely to happen again, or that they have a reasonable fear of such violence occurring.

When seeking protection through a FVRO, individuals have the option to request an interim FVRO from the court. An interim FVRO serves as a temporary measure, providing immediate protection while the individual navigates the legal process to obtain a final, more long-term order.


One notable aspect of an interim FVRO is its ability to be granted without notifying the other party against whom the order is sought. This discretion allows individuals to swiftly secure protection without alerting the alleged perpetrator, ensuring the safety and confidentiality of the applicant during the legal proceedings.

Legal Aid offers a comprehensive guide on their website, detailing the process and requirements for obtaining an interim FVRO.[2]


This framework raises important questions about what constitutes family violence in the context of restraining order trials, guiding the legal system in providing necessary protection for those in need.

 

What is Family Violence?

According to the Restraining Orders Act 1997 (WA), "Family Violence" and "Personal Violence" are detailed under sections 5A and 6, encompassing a broad spectrum of behaviours. These provisions aim to protect individuals, including children, who have been subjected to or have witnessed family or personal violence. Section 5A of the Restraining Orders Act 1997 offers a glimpse into the expansive scope of behaviour that may qualify as family violence. In the case of CDO v Western Australia [2022] WASCA 58, the court underscored the inclusivity of this provision, highlighting examples such as physical assault and sexual abuse perpetrated against a family member.

The deliberate breadth of this inclusive definition aims to encompass a diverse range of conduct and behaviours indicative of family violence. By casting a wide net, the law seeks to address and prevent various forms of harm inflicted within familial relationships, ensuring that individuals experiencing such violence can seek protection under the law.

 

Definition of Family Violence (Section 5A)

Family violence under the Act includes:

  • Violence or Threats of Violence: Direct violence or threats towards a family member.

  • Coercive or Controlling Behaviours: Any actions that control or instil fear in a family member.


Examples of behaviours constituting family violence include, but are not limited to:

  • Physical Assault: Any form of physical violence against a family member.

  • Sexual Abuse: Includes sexual assault or any sexually abusive behaviour.

  • Stalking and Cyber-Stalking: Persistent and unwanted surveillance.

  • Verbal Abuse: Repeated derogatory remarks.

  • Property Damage: Destroying or damaging the property of a family member.

  • Harm to Pets: Causing injury or death to an animal owned by the family member.

  • Financial Abuse: Unreasonably denying financial autonomy or support.

  • Dowry-Related Abuse: Coercing or threatening in connection with dowry demands.

  • Social Isolation: Preventing the family member from maintaining relationships.

  • Kidnapping or False Imprisonment: Depriving liberty of the family member.

  • Non-Consensual Distribution of Intimate Images: Sharing intimate images without consent.

  • Exposure of Children to Abuse: Causing a child to witness any of the above behaviours.


The Act also considers procuring another person to commit family violence as committing the act itself.


Definition of Personal Violence (Section 6)

Personal violence refers to acts committed against someone with whom the perpetrator does not share a family relationship. These acts include:

  • Assault or Injury: Physical assault or causing injury.

  • Kidnapping or Deprivation of Liberty: Holding someone against their will.

  • Stalking: Persistent, unwanted pursuit.

  • Threats: Threatening to commit any of the aforementioned acts.

  • Imagined Personal Relationships: Acts that would be considered family violence if a family relationship existed.


Similar to family violence, procuring another person to commit personal violence is regarded as committing the violence.


What happens if you breach a VRO

Under the Restraining Orders Act 1997 (WA), breaching a restraining order is considered a serious offence. The Act specifies penalties for breaching different types of restraining orders, including Family Violence Restraining Orders (FVRO), Violence Restraining Orders (VRO), Misconduct Restraining Orders (MRO), and police orders. The penalties and procedures for breaches are outlined below.


Penalties for Breach

Family Violence Restraining Order (FVRO)

  • Offence: Breaching an FVRO.

  • Penalty: A fine of $10,000 or imprisonment for 2 years, or both.

Violence Restraining Order (VRO)

  • Offence: Breaching a VRO.

  • Penalty: A fine of $10,000 or imprisonment for 2 years, or both.

Misconduct Restraining Order (MRO)

  • Offence: Breaching an MRO.

  • Penalty: A fine of $1,000.

Police Orders

  • Offence: Breaching a police order.

  • Penalty: A fine of $10,000 or imprisonment for 2 years, or both.


Legal Proceedings

Proceedings for breaches of restraining orders are conducted as follows:

  • Children: If the alleged offender is a child, the case is heard in the Children's Court.

  • Adults: For adults, the case is heard in the Magistrates Court.


Aggravating Factors

Exposure of a child to family or personal violence during the commission of the offence is considered an aggravating factor, influencing sentencing under section 7(1) of the Sentencing Act 1995. However, this does not limit the court's discretion to determine other aggravating factors.


Time Limits for Prosecution

Prosecutions for offences under subsections (1), (1A), or (2a) must be commenced within two years from the date the offence is alleged to have been committed.


Recidivism and Penalties

For repeat offenders, Section 61A outlines the following:

Definition of Relevant Offence

  • Includes offences under section 61(1), (1A), or (2a) and specific aggravated offences under The Criminal Code.

Repeated Offences

  • If an individual is convicted of a relevant offence and has two prior convictions for relevant offences within the past two years, a mandatory penalty, typically involving imprisonment or detention, is required unless the court deems it clearly unjust and the individual is not a threat.

Court's Discretion

  • Courts can avoid imposing imprisonment if deemed clearly unjust, providing written reasons for this decision.


Commentary on Recidivism

Cases such as Atherden v Western Australia and Gamble v Western Australia highlight the compulsive and obsessive behaviour often associated with repeated breaches, indicating the significant concern for safety and effectiveness of restraining orders.[3] Despite legislative efforts to impose stricter penalties, courts have historically been lenient, leading to the introduction of section 61A to ensure mandatory penalties for repeated breaches.


Conclusion

The Restraining Orders Act 1997 (WA) provides a comprehensive legal framework for addressing acts of abuse and violence within familial and personal relationships. The Act's definitions of family and personal violence encompass a broad spectrum of behaviors, ensuring extensive protection for victims. The provisions for interim and final Family Violence Restraining Orders (FVROs) allow for immediate and long-term safeguards against potential harm. The severe penalties for breaching restraining orders, including substantial fines and imprisonment, underscore the seriousness with which these violations are treated. The inclusive and expansive nature of the definitions, as highlighted in legal precedents such as CDO v Western Australia, ensures that multiple forms of conduct and behavior are captured, thereby offering robust protection for those affected by family and personal violence. This legal framework not only aims to prevent violence but also to provide a secure and supportive environment for victims seeking redress and protection through the legal system.



Disclaimer: The information provided here is for educational purposes only and should not be considered legal advice. If you need legal assistance, we recommend contacting Carter Dickens Lawyers or consulting a qualified attorney. Legal matters can vary based on laws and regulations, and it is important to seek professional advice for your specific

 

 


[1] Restraining Orders Act 1997 (WA) ss 25(2)(a), 38(2)(a); see also, ss 18(2)(b), 38(2)(b).

[2] Legal Aid, ‘Interim Family Violence Restraining Order Guide’ (Web Page) < https://www.legalaid.wa.gov.au/resources/self-help-kits-and-guides/interim-family-violence-restraining-order-guide>.

[3] Atherden v The State of Western Australia - [2010] WASCA 33; Gamble v The State of Western Australia - [2007] WASCA 120.

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