The Restraining Orders and Other Legislation Amendment (Family Violence) Bill 2016

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The Restraining Orders and Other Legislation Amendment (Family Violence) Bill 2016[1]

The Restraining Orders and Other Legislation Amendment (Family Violence) Bill, was second read in the Legislative Council on September 14th by the Attorney General, the Hon. Michael Mischin MLC, as part of the Government’s legislative reform package addressing family violence in Western Australia.

The existing definition of ‘act of family and domestic violence’ will be replaced with a new definition of ‘family violence.’ The definition largely replicates the definition of ‘family violence’ in the Family Law Act 1975 (Cth). This increases coherence between family-related proceedings in the Magistrates Court of Western Australia and proceedings in the Family Court of Western Australia.

The new definition removes the concept of an ‘act of abuse’ and instead provides that family violence means violence, or threats of violence, by a person towards a family member, or other behaviour by the person that coerces, controls or causes the family member to be fearful. This reflects the fact coercion and control tend to be central, common features of family violence, which is often a “patterned crime” which can in some cases occur over a long period of time. This definition - the basis for making a FVRO - would replace the current system where the victim needs evidence of a specific 'act of abuse' to obtain a restraining order.

The change in terminology is also a deliberate move away from a connotation that this is ‘just a domestic’ or personal issue and recognises the broad impact that this violence has on the family unit as a whole, especially children. The Proposed new definition of family violence includes a list of examples of behaviour that may constitute family violence. The non-exhaustive list includes: assault; sexual assault; stalking; repeated derogatory remarks; damaging or destroying property; causing death or injury to an animal; unreasonably denying financial autonomy; unreasonably withholding financial support; preventing connections with family, friends or culture; kidnapping; and causing a child to be exposed to family violence. These are examples of behaviour that may constitute ‘family violence’ providing there has been violent or threatening behaviour, or other behaviour by a person that coerces, controls or causes the family member to be fearful.

The new definition of ‘family violence’ also includes the examples of cyber-stalking and the distribution of intimate images without consent (colloquially referred to as ‘revenge pornography’). Technology-facilitated abuse has become an increasingly common feature in family violence cases. Victims are being subjected to public humiliation and/or blackmail with threatened or actual posting of intimate images on social media sites or via other electronic means.

The legislation introduces Family Violence Restraining Orders (FVROs) into the court system, which a court must issue unless it is inappropriate to do so, such as if the primary aggressor in a relationship is seeking an order against a victim. The FVROs would enable the court to order an offender to attend a behavioural change or intervention program to prevent further family violence from occurring.  It would also empower the court to restrain a person from distributing or publishing intimate images of a person and from cyber-stalking. Those who breach the conditions of a FVRO by posting 'revenge porn' on the internet or by using technology to stalk the subject of the order online would face serious criminal charges, which could send them to jail for two years.

 The Bill also addresses a 2012 commitment made by the State Government to clarify and strengthen Western Australia's criminal law in relation to unlawful acts which cause harm to a woman's unborn child or the loss of her pregnancy. If a person intentionally causes grievous bodily harm to a pregnant woman which results in the loss of her pregnancy, that person will face up to 20 years' imprisonment, while a person who causes grievous bodily harm to a woman's unborn child in other circumstances could be jailed for up to 14 years.

 Other key aspects of the Bill include:

  • Increasing the maximum sentence for the offence      of unlawful assault causing death from 10 years to 20 years.  While      the offence was originally introduced to deal with 'one-punch' homicides      in the context of drunken violence, it has also been used in family      violence cases when more serious charges cannot be proven due to lack of      witnesses
  • Clarifying that FVROs can, and should, where      appropriate, be made for a period of longer than the current default      two-year period.  Courts will be required to prioritise victim      safety, and to have regard to the views of the victim, when determining      the duration of an order. In cases where the respondent has been jailed,      the duration of the FVRO will be for the period of incarceration plus two      years in order to avoid the victim having to re-apply for a FVRO when the      respondent is released from prison
  • Requiring courts to have regard to any 'risk      relevant' information in making decisions about FVROs, such as police      incident reports, as well as its own records on a perpetrator's previous      criminal convictions, restraining orders and legal proceedings
  • Making it tougher for family violence      perpetrators to avoid being served with restraining orders, by requiring      courts to consider whether the safety of the victim requires the order to      be served over the telephone, for instance, and introducing a new criminal      offence if a person who is to be restrained by a FVRO refuses to accompany      a police officer to a police station to be served with the order. 

The posting, or threat of posting, of sexually explicit photographs or videos online, without the consent of those depicted, is used to threaten, control, abuse, bully and humiliate those in the images or film.

The focus is on the perpetrator’s use of an absence of consent to harass and abuse. The new legislation would make it easier for victims to come forward and give the police a greater incentive to prosecute these activities, but crucially it would also make clear that distributing sexual images without consent is entirely unacceptable.

Making police investigations more effective by addressing the investigative barriers will be critical to the effectiveness of legislation. While a new offence is a start towards public recognition of the harm of revenge pornography, it can only play a small part in reducing the prevalence and the underlying culture that creates and legitimises sexual violence, abuse and harassment in all its forms,

Addressing this requires a government commitment not just to headline-making legislative reform, but also to law enforcement and, amongst other things, the effective implementation of any new legislation and compulsory sex and relationships education in schools and to taking the greater public debate and campaigns around issues of consent, privacy and victim-blaming.

[1] This information is taken from the Second Reading Speech of the Restraining Orders and Related Legislation Amendment (Family Violence) Bill 2016.