Personal property directions in protection orders

Overview

16.185 Most 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. Similarly, NSW family violence legislation provides that a court may make an ancillary property order when issuing a protection order.[186] For the purpose of the following discussion, conditions or orders made to enable a person to recover property in protection order proceedings will be referred to as ‘personal property directions’.

16.186 Personal property directions may be of particular relevance where courts make exclusion orders. As discussed in Chapter 11, exclusion orders are protection orders which include a condition prohibiting a person from entering or approaching the protected person’s residence. State and territory family violence legislation in all jurisdictions except the ACT expressly specifies that exclusion orders may cover a property in which the person against whom the order was made has a legal or equitable interest.

16.187 Most family violence laws provide for a court to make personal property directions permitting an excluded person to gain access to the premises for the purpose of taking personal possessions, often setting out the manner in which property may be recovered or providing for it to occur in the company of police. In Queensland, for example, a court that imposes an exclusion order must consider including another condition allowing the excluded person to recover ‘stated property’.[187] In the Northern Territory a right of recovery automatically applies where a court makes an exclusion order in respect of property on which the personal property of an excluded person is located.[188]

16.188 In NSW and Western Australia, courts may make personal property directions when issuing protection orders that do not include exclusion conditions to enable persons who have used family violence to recover personal property. For example, NSW family violence legislation permits a court that has issued a protection order to make personal property directions to enable a person who has used family violence to remove personal property that has been left at premises occupied by the victim.[189]

16.189 Most state and territory family violence legislation provides for a court making a protection order to make personal property directions enabling victims to recover property—irrespective of whether the protection orders contain exclusion conditions.[190] For example, s 12 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) provides that a protection order may require a person who has used family violence to ‘return specified personal property to a protected person’, or to ‘allow a protected person to recover or have access to or make use of specified personal property’.

16.190 The Family Violence Act 2004 (Tas) does not expressly cover the recovery of property by either a victim or an excluded person. However, the Justices Act 1959 (Tas) provides for a court to make a personal property direction so that a victim or a person restrained by the order may recover their property.[191]

16.191 In South Australia and the ACT, legislative provisions address the retrieval of property by a victim of violence, not the recovery of property by an excluded person. However, the Australian Government Solicitor has noted that:

if the legislation in a particular jurisdiction does not deal expressly with retrieval of personal property, this does not mean that a court would be unable to attach appropriate conditions to an exclusion order—for example, stipulating that a person is excluded from premises but may return at a certain time to collect specified items.[192]

16.192 Generally, as state and territory family violence legislation makes clear that judicial officers issuing protection orders are not limited to imposing the standard conditions, judicial officers may make personal property directions not specified by legislation when issuing a protection order—although the Commissions are not aware of whether this occurs in practice.[193]

Types of property subject to personal property directions

16.193 Family violence laws in Western Australia and the Northern Territory provide additional details about the type of property which may be taken. A person may recover ‘prescribed property’ pursuant to an order made under the Restraining Orders Act 1997 (WA) including: property used to earn income; personal property of a child of the person; property that is wholly or partly the property of the excluded person that is used by or for his or her child; and property that the victim has agreed that the person can take.[194] Under the Domestic and Family Violence Act 2007 (NT), an excluded person may retrieve personal property including ‘clothes, tools of trade, personal documents and other items of personal effect’.[195]

16.194 In some states and territories, family violence laws provide for conditions which may be imposed specifying property that cannot be taken—or must be returned—by an excluded person, or a person who has used family violence. In Victoria, a court may prevent an excluded person from taking ‘the furniture or appliances in the residence that enable the normal running of the home’.[196] In making a protection order—not necessarily an exclusion order—a Victorian court may direct a person who has used family violence to return not only personal property of the victim and his or her family members, but also personal property belonging to both parties, where that will enable the everyday life of the victim ‘to continue with as little disruption as practicable in the circumstances’.[197] The Explanatory Memorandum indicated that this provision may apply to ‘basic personal property such as clothes, cooking equipment, a car’.[198]

16.195 In several jurisdictions, protection orders may impose conditions relating to personal property which is reasonably needed by a victim of family violence. In Western Australia, a court may restrain a person who has used family violence from preventing the victim obtaining and using property reasonably needed by the victim, even if the person who has used family violence is the owner, or has the right to possess the property.[199] Similarly, ACT legislation provides that an excluded person may be prohibited from taking possession of, or be required to give a victim, personal property that is ‘reasonably needed’ by the victim or a child of the victim.[200] South Australian family violence legislation also contains such a provision in relation to property reasonably needed by the victim.[201]

Interaction with federal family court proceedings

16.196 Personal property directions can interact with property proceedings pursuant to the Family Law Act[202] where they:

  • 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;

  • are directly inconsistent with existing property orders made under the Family Law Act; and

  • are used as an indication of possessory or ownership rights by a federal family court and thereby have an impact on the outcome of future property proceedings under the Family Law Act.

16.197 Depending on the property that a person who used family violence or a victim obtains through a personal property direction, he or she may not have the need or desire to commence property proceedings in the federal family courts. The likelihood of this occurrence will depend to some extent on the type of property to which access is gained and the ownership or possessory rights. The scope for this to occur will depend on the breadth of personal property directions which may be issued by a state or territory court in exercising jurisdiction under family violence legislation.

16.198 In its report, Apprehended Violence Orders, the NSWLRC recommended that a court could decline to make a personal property direction if it was satisfied that title to the property is genuinely in dispute; or other more appropriate means are available for the issue to be addressed. This could include, for example, ongoing property proceedings in a federal family court.[203] No provision to this effect is included in the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Submissions and consultations

Interaction with federal family court proceedings

16.199 In the Consultation Paper, the Commissions asked how often persons who have been the subject of exclusion conditions in protection orders or victims of family violence take possession of property which they do not own or have a right to possess, or deny the other person access to property. The Commissions also asked what impact this has on property proceedings or orders relating to property under the Family Law Act.[204]

16.200 The Magistrates’ Court and the Children’s Court of Victoria stated ‘some magistrates have commented they hear about this situation in evidence in contested family violence matters’.[205] However the Law Council of Australia stated that in the experience of members of their Family Law Section, ‘the improper removal or retention of personal property by a person against whom a personal protection order is made is not a significant problem’.[206]

16.201 A number of stakeholders submitted that the more common problem is the difficulties faced by victims in retrieving their personal property after they have left their home.[207] For example, two women’s legal services commented that victims who have been forced to flee their homes ‘tell us that they are regularly denied access to or possession of their property’.[208] Stakeholders commented that when victims leave home, they may only take with them limited personal property.[209] The Department of Premier and Cabinet (Tas) stated that this is particularly the case ‘for victims who flee first, especially in secret, prior to seeking assistance’.[210]

16.202 Victims may have difficulty retrieving ‘identification cards, bank cards, passports’, as well as personal belongings such as clothes and children’s items.[211] A number of stakeholders commented that persons who use family violence may destroy or dispose of property, or threaten to do so.[212] In particular, items of sentimental value and clothing may be destroyed.[213] The Department of Premier and Cabinet (Tas) stated that this has

a huge impact—in the case of the clothes, the financial impact is enormous because of the cost of replacing new-for-old. This applies also to having to re-furnish and re-equip a house from scratch—it simply does cost much more money to get everything again than the ‘valuation’ of the items.[214]

16.203 Several stakeholders submitted that victims are cautious not to provoke the person who has used family violence in relation to this issue.[215] For example, Women’s Legal Services Australia and Women’s Legal Services NSW commented that:

our clients often state that it is not worth the hassle and opt to ‘keep the peace’ rather than find a way to get the property back.[216]

16.204 Women’s Legal Services NSW also stated that once victims leave the home for a safe place away from the person who has used violence, they may no longer be eligible for a protection order where they are not at risk of further violence. Consequently, these victims are unable to obtain personal property directions from state and territory courts.[217]

16.205 The Queensland Government commented on the consequences of an exclusion order on the person who has used family violence. It stated that feedback received in their consultations for the 2010 review of the Queensland family violence legislation noted that it can be difficult for an excluded person to recover property, particularly where property proceedings are on foot or pending in federal family courts. It stated that ‘a lack of clarity on the entitlement of the parties to remove or retain property can be a source of further conflict’.[218]

16.206 Another stakeholder expressed concern about excluded persons being deprived of their personal property:

where a family violence order is issued without property settlement and the defendant is removed then the defendant suffers serious financial loss.[219]

16.207 In relation to the question about the impact that denying a person possession or access to their personal property may have on federal family court proceedings, Women’s Legal Services Australia stated that

the inability to gain access to personal belongings can have some practical impact on the ability of family violence victims to achieve a just settlement under the Family Law Act 1975 (Cth) because they are unable to obtain access to important documents that will assist them in negotiating a fairer property settlement.[220]

16.208 One stakeholder considered that a victim in these circumstances should be able to resolve their legal matters in the same court, arguing:

a victim of abuse should NOT be forced to lose all or nearly all of their assets through legal fees just to try and gain what was rightfully theirs in the first place.[221]

16.209 Some stakeholders also expressed concern that federal family courts are inaccessible to victims of family violence with property matters, particularly when the pool of assets is small, and in some cases ‘may even be just about transferring responsibility for a debt’.[222] Women’s Legal Services Australia and Women’s Legal Services NSW commented that legal aid is generally unavailable for these matters, and lawyers’ costs are ‘prohibitive and disproportionate’.[223] National Legal Aid and Legal Aid NSW commented that this issue particularly affects their clients from culturally and linguistically diverse backgrounds, who may be unable to represent themselves in property proceedings in federal family courts.[224]

16.210 Several stakeholders provided case studies which illustrated the lack of practical avenues available for victims to obtain personal property,[225] such as the following from National Legal Aid:

The parties were from Iraq. Following family violence the mother and children went to a refuge. When the mother returned to the former matrimonial home (rented accommodation) the father had removed nearly all of their property including the children’s bedding, clothes and toys. The mother had no practical legal remedy.[226]

Types of property subject to personal property directions

16.211 In the Consultation Paper, the Commissions proposed reform to personal property directions to limit their potential effect on proceedings in federal family courts. To this end, the Commissions considered that the types of property subject to personal property directions should be limited. The Commissions proposed that provisions in state and territory legislation dealing with exclusion orders should

(a) limit the types of property which a court may order an excluded person to recover to clothes, tools of trade, personal documents and other personal effects, and any other items specified by the court; and

(b) provide that in order to recover property should not include items

(i) which are reasonably needed by a victim or a child of the victim; or

(ii) in which the title is genuinely in dispute; and

(c) provide that an order to recover property should not be made where other more appropriate means are available for the issue to be addressed in a timely manner.[227]

16.212 The Commissions asked if there are other types of property which should, or should not, be subject to recovery by an excluded person—for example, if an excluded person should be able to recover property of his or her child.[228]

16.213 Most stakeholders who commented agreed with the proposal.[229] One community organisation stated that, anecdotally, more property is taken than specified in the proposal, and ‘once gone it can be very difficult to recover’.[230] Several stakeholders confirmed that their support—presumably with respect to the limitations proposed—related specifically to circumstances where the person who has used family violence seeks to recover property.[231] Women’s Legal Services Queensland—while agreeing with the proposal—commented that there may not be other means to retrieve belongings.[232]

16.214 The Queensland Law Society provided an alternative view. It submitted that in Queensland, the type of property that may be recovered is necessarily limited by the role of police in personal property directions. It stated that as police are typically very busy,

the items are only of the kind and nature identified in the Commissions’ proposal. Police do not have the time to ensure that bulky furniture is removed. Similarly, police are insistent that items are available for a child (or retained for the child). Similarly police certainly do not allow for the removal of items where the title is in dispute.[233]

16.215 The Queensland Law Society argued that personal property directions should be left to judicial discretion, and submitted that:

magistrates do not make orders for the recovery of property if there are other more available and appropriate means for the issue to be addressed in a timely manner.[234]

16.216 Women’s Legal Services Australia and Women’s Legal Services NSW also argued that courts should retain discretion as to the types of property which may be subject to personal property directions. They considered it may be useful for items such as furniture to be subject to personal property directions, if this could finalise property matters between the parties.[235]

16.217 Several stakeholders supported the provisions in the Victorian family violence legislation.[236] The types of property which may be included or excluded in personal property directions in Victoria are discussed above. The Magistrates’ Court and Children’s Court of Victoria stated that these provisions in relation to exclusion orders work well.[237] The Aboriginal Family Violence Prevention Legal Service Victoria commented:

The Victorian legislation specifies what the defendant can’t remove and what must be returned rather than what the defendant can remove which leaves greater discretion to the Court.[238]

16.218 In relation to the question of whether other property should be included or prohibited from recovery by an excluded person, stakeholders’ responses focused on the property of the child. One legal centre submitted that the excluded person should not be able to recover children’s property when the children were living with the victim.[239] Several stakeholders considered that a child’s personal property should be with the person who has care of the child.[240] For example, the Law Council of Australia considered that including property of the child in personal property directions for the benefit of an excluded person ‘would have merit in circumstances where the excluded person has the primary care of that child and the property is necessary for the day to day care of that child’.[241]

16.219 Legal Aid NSW specified that such recoverable property of the child should include property necessary for a child’s education—such as a computer. It considered that—arguably—a car may also be an example:

A protected person with children may require a motor vehicle to transport children and it may be one of the only assets available.[242]

16.220 National Legal Aid and the Women’s Domestic Violence Court Advocacy Service Network submitted that an excluded person should not be able to obtain orders to recover pets, where the child is not in their care.[243] Wirringa Baiya Aboriginal Women’s Legal Service Inc submitted that—apart from children’s property and the property specified in the proposal—protection order proceedings ‘are not the appropriate forum’ to deal with property disputes.[244]

16.221 Women’s Legal Services NSW did not express support for such a restriction on property recoverable by an excluded person—reiterating that this is ‘is not a major problem reported by our clients’.[245]

Commissions’ views

Personal property disputes

16.222 In the Consultation Paper, the Commissions expressed preliminary concerns regarding the operation of personal property directions. In particular, the Commissions were concerned that parties, particularly excluded persons, may take advantage of personal property directions to gain possession of property which they do not own, or wrongfully deny the other party access to property—and that this may have an impact on federal family court proceedings. However, stakeholder responses indicate that, in practice, these are not significant problems.

16.223 A related issue which attracted far more stakeholder concern and comment is the absence of practical legal remedies for victims of family violence in resolving disputes regarding personal property. Federal family courts are inaccessible to many persons due to the expense of lawyers, lack of availability of legal aid, and the difficulties of self-representation. Further, initiating proceedings in a federal family court may be a disproportionate measure in the context of a small pool of assets, which may not amount to more than ‘personal property’. For many victims of family violence, personal property directions are the only practical means available of resolving such property disputes.

16.224 Personal property disputes can escalate tensions between parties following family violence and relationship breakdown—potentially putting victims at further risk. Proceedings provide an accessible and safe forum for victims of family violence to resolve personal property disputes. By addressing ongoing conflict and providing safe procedures around the recovery of personal property, personal property directions may operate to improve the safety of victims of family violence—the key objective of this Inquiry.

Limitations on property subject to personal property directions

16.225 For the above reasons, the Commissions consider that restricting the scope of personal property directions may be counterproductive in those cases where parties are unable or unwilling to pursue property matters in federal family courts. The Commissions therefore do not make a recommendation limiting the types of personal property that may be subject to personal property directions to the items proposed, namely: clothes, tools of trade, personal documents and other personal effects. The Commissions note that in some jurisdictions—such as Victoria—the types of property which may be deemed ‘personal property’ is significantly broader, and includes furniture, household appliances and even cars.

16.226 The Commissions also proposed to limit recoverable property to ‘items specified by the court’. This is not a limitation on the scope of the property which may be subject to personal property directions—rather, it ensures that a person with a personal property direction may only recover specific items. The Commissions consider that clear and specific personal property directions prevent uncertainty, minimising the potential for conflict between parties and further intimidation of the victim. The Commissions therefore consider that personal property directions made by state and territory courts should be as specific as possible regarding the property that may be recovered.

16.227 Family violence legislation already empowers state and territory courts to make personal property directions in specific terms. The Commissions do not consider it necessary to include in family violence legislation provisions limiting property recoverable under a personal property direction to items specified by the court. It is sufficient and appropriate to encourage the making of specific property directions through training and education of judicial officers. Training relating to personal property directions is discussed below.

Property reasonably needed by the victim and property for which title is in dispute

16.228 The Commissions consider that in many cases, it will be appropriate for a state or territory court to make personal property directions to ensure that a victim has possession of items they reasonably need—including items belonging to a child of the victim. However, as stakeholders have indicated, it is the lack of means to resolve property disputes that causes practical problems for victims of violence—rather than the content of personal property directions where they are issued. Generally, the Commissions do not have strong views as to whether family violence legislation should specify that certain types of property should, or should not, be subject to recovery by an excluded person under a personal property direction.

16.229 The Commissions are of the view that items of property for which title is genuinely in dispute should not be excluded from the scope of personal property directions. As discussed above, the Commissions consider that providing a forum for victims of family violence to resolve disputes about personal property—including disputes about property title—improves the safety of victims, thus facilitating the protective objectives of family violence legislation.

16.230 For the above reasons, the Commissions have decided not to recommend that family violence legislation should include provisions providing that personal property directions should exclude items reasonably needed by a victim or a child of the victim, or items in which title is genuinely in dispute.

Personal property directions should not take the place of Family Law Act orders

16.231 Where parties have access to federal family courts, property disputes should be resolved in accordance with the dedicated and comprehensive processes pursuant to pt VIII of the Family Law Act, and the specialist expertise of family court judicial officers. The Commissions consider that personal property directions should not generally be made where other more appropriate means are available for the issue to be addressed in a timely manner. Rather, personal property directions should be available to the extent necessary to address the gap in protection for victims of violence who do not have access—or ready access—to other forums.

16.232 Again, the Commissions do not consider it necessary to reflect this principle in family violence legislation. The Commissions note the comments of the Queensland Law Society that courts are unlikely to make personal property directions in circumstances where more appropriate forums are available to parties. Further, this issue may be adequately dealt with in judicial education and training. An important benefit of this approach is that it allows room for judicial discretion. For example, in a case where federal family court proceedings are pending, a judicial officer applying family violence legislation may still consider it necessary to make a personal property direction to facilitate a prompt and safe recovery of personal items such as identification and bank cards. State and territory magistrates applying family violence legislation have experience in responding to the immediate safety concerns that underpin their family violence jurisdiction.

16.233 To ensure that state and territory courts only make personal property directions where appropriate, courts must have knowledge of orders made in other forums, as well as current and pending proceedings. Strategies to provide state and territory courts with this information are discussed below.

Training

16.234 Training of judicial officers and other professionals in relation to improving practice is discussed earlier in this Chapter. The Commissions consider that training should address the making of personal property directions to give effect to the protective objectives of family violence legislation. Training may address the role of personal property directions in resolving ongoing conflict between parties, ensuring property recovery occurs safely—with the involvement of police where necessary, and minimising opportunities for further abuse of the victim through destruction or disposal of personal property.[246]

Strategies to prevent inconsistencies between orders

16.235 Personal property directions under state and territory family violence legislation may be inconsistent with ownership or possessory rights declared under Family Law Act property proceedings. In accordance with s 109 of the Australian Constitution, when a law of a state is inconsistent with a law of the Commonwealth which is intended to cover the field, the latter shall prevail to the extent of the inconsistency.

16.236 South Australian family violence legislation contains provisions to minimise the occurrence of inconsistencies between federal family court orders and personal property directions. The Intervention Orders (Prevention of Abuse) Act 2009 (SA) expressly requires courts issuing personal property directions to take into account any agreement or order for the division of property under the Family Law Act of which it has been informed.[247]

16.237 Under s 20 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA), an applicant for a protection order must inform the court of any agreement or order for the division of property under the Family Law Act, or any pending application for such an order.[248] However, there is no specific question in relation to property orders on the application form for a protection order in the Magistrates Court of South Australia.[249]

16.238 No other state or territory family violence legislation expressly requires an applicant for a protection order to inform the court about any property order under pt VIII of the Family Law Act, or pending proceedings for such an order, nor do any application forms expressly seek this information.

Submissions and consultations

16.239 In the Consultation Paper, the Commissions 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. These proposals were as follows:

  • state and territory family violence legislation should require applicants for protection orders to inform the courts about and courts to consider, any agreement or order for the division of property under the Family Law Act, or any pending application for such an order;[250] and

  • application forms for protection orders in family violence proceedings should clearly seek information about any agreement or order for the division of property under the Family Law Act or any pending application for such an order.[251]

16.240 Stakeholders who commented on these proposals overwhelmingly expressed their support.[252] For example, the Queensland Law Society stated that:

there should be as much openness as possible for those who come to court seeking orders and in the court being aware of such orders so as to minimise conflict between protection orders and property settlement orders under the Family Law Act.[253]

16.241 Women’s Legal Service Queensland submitted that the kinds of disclosure required by state and territory legislation of applicants, and prompted on forms, should be limited to relevant property, specifically, ‘personal items and chattels rather than the whole property settlement, unless that is relevant’.[254] Similarly, National Legal Aid and Legal Aid NSW supported the proposed legislative requirement of applicants only where an agreement or order for division of property is relevant to the protection order.[255]

16.242 Several women’s legal services, while supporting the proposals, expressed some concerns about their operation. Wirringa Baiya Aboriginal Women’s Legal Service Inc pointed out that ‘some applicants may not be aware of the progress of their family law matter’.[256] Women’s Legal Services Australia and Women’s Legal Services NSW stated that they are

concerned that awareness of potential or actual property proceedings under the Family Law Act might result in state or territory courts electing to refrain from making ancillary property orders. It is important to ensure that property will still be recovered with police assistance when required.[257]

16.243 With respect to the proposed changes to application forms, Women’s Legal Services NSW considered that adding more questions may make the forms ‘more long and complex, particularly for many of our clients who are from culturally and linguistically diverse backgrounds’.[258]

16.244 The Magistrates’ Court and Children’s Court of Victoria did not consider the proposed reforms necessary. It commented that while information sharing is important, ‘such information may be of limited assistance to decision making in relation to family violence protection issues’.[259]

Commissions’ views

16.245 Personal property directions made under state and territory family violence legislation may conflict with existing orders of a federal family court made under pt VIII of the Family Law Act. This is likely where a court is not informed about the existence of such orders. Inconsistencies between orders may cause uncertainty and increase tensions between parties. Accordingly, there should be strategies in place for courts making protection orders to obtain information about, and consider, property orders made under the Family Law Act, and pending proceedings for such orders.

16.246 The Commissions consider that application forms for protection orders should clearly ask about the existence of orders for the division of property under the Family Law Act, or pending applications for such orders. However, the Commissions do not recommend imposing a legal obligation on applicants to inform courts about Family Law Act property orders and proceedings. The Commissions note the concerns of Wirringa Baiya Aboriginal Women’s Legal Centre Inc that some applicants may be unaware of the details of their federal family court matter. Imposing a legal obligation to provide information may disadvantage persons from culturally and linguistically diverse backgrounds, persons with a disability, and unrepresented applicants. The Commissions consider it sufficient—and more effective—to clearly prompt disclosure of Family Law Act property orders and proceedings in application forms.

16.247 The Commissions consider that another effective strategy to ensure courts are aware of federal family court orders and proceedings regarding property is to place an obligation on state and territory courts to request this information when making a personal property direction. Additionally, the Commissions recommend elsewhere in this Report that state and territory courts should be given access to the Commonwealth Courts Portal.[260] This will enable state and territory courts issuing personal property directions to obtain accurate information about property orders under the Family Law Act, as well as pending proceedings.

16.248 The above strategies ensure that state and territory courts applying family violence legislation can make informed determinations in relation to personal property directions, thereby avoiding the potential for inconsistency between personal property directions and federal family court orders. Further, these strategies parallel those recommended by the Commissions in relation to the interaction of parenting orders and protection orders in Chapter 30.[261] If both sets of reforms are implemented, this will provide a consistent and effective approach for state and territory courts to obtain information about relevant federal family court proceedings relating to both property and parenting matters when making decisions under family violence legislation aimed to improve safety of victims and their children.

16.249 The Commissions note the concerns of two women’s legal services that state and territory courts may decline to issue personal property directions where they are made aware of pending or concurrent property proceedings in federal family courts. As discussed above, the Commissions consider that, while personal property disputes should generally be resolved in federal family courts where this option is available, judicial officers should retain discretion to make personal property directions where necessary to address a gap in protection. The Commissions consider that the issues raised by the women’s legal services may be addressed in judicial education and training.

Impact on future federal family court proceedings

16.250 The reforms discussed above create strategies to avoid inconsistencies between personal property directions made under family violence laws and existing Family Law Act orders. Sections 87 and 88 of the Family Violence Protection Act 2008 (Vic) address the potential repercussions of personal property directions on any future Family Law Act proceedings—including the effect of inconsistency between orders. Section 87 provides:

(1) The power … to include a condition relating to personal property in a family violence intervention order is subject to any order to the contrary made by the Family Court, or another court or a Tribunal with relevant jurisdiction to adjudicate in property disputes.

(2) To the extent of any inconsistency between a condition relating to personal property in a family violence intervention order and an order made by the Family Court, another relevant court or a relevant Tribunal the order of the Family Court, other relevant court or relevant Tribunal prevails.

16.251 The Explanatory Memorandum advises that the purpose of s 87 is to:

ensure that property disputes can be resolved in the appropriate jurisdiction and any condition imposed by a family violence intervention order applies in the absence of, or prior to, any determination of the property rights of the parties.[262]

16.252 Section 88 of the Family Violence Protection Act 2008 (Vic) specifies that a condition relating to personal property in a protection order does not affect any rights the protected person or excluded person may have in relation to the ownership of the property. The Explanatory Memorandum notes that this could be an issue, for example, if the court orders that an excluded person’s refrigerator is to remain in the residence under an exclusion condition. In accordance with the section, the excluded person will still own the refrigerator and a federal family court will be able to take this into account in a division of property in association with divorce proceedings.[263]

16.253 Similarly, the Crimes (Domestic and Personal Violence) Act 2007 (NSW) provides that a personal property direction does not confer a right to take property that a person does not own or have a legal right to possess.[264] The Justices Act 1959 (Tas) provides that a protection order that affects possession of, or access to, premises or property does not affect any legal or equitable interest that any person holds in the premises or property.[265]

Submissions and consultations

16.254 In the Consultation Paper, the Commissions made two proposals in relation to the interaction of personal property directions and future federal family court property proceedings:

  • state and territory family violence legislation should provide that personal property directions made in protection order proceedings are subject to orders made by a federal family court or another court responsible for determining property disputes;[266] and

  • state and territory family violence legislation should provide that personal property directions do not affect ownership rights.[267]

16.255 The Commissions proposed that the Family Violence Protection Act 2008 (Vic) should be referred to as a model, pursuant to ss 87 and 88 respectively.

16.256 Both proposals received widespread support from those stakeholders who commented.[268] The Magistrates’ Court and Children’s Court of Victoria considered that these provisions work well in Victoria.[269] The Queensland Commission for Children and Young People and Child Guardian—in support of the proposals—stated that ‘protection order proceedings should only deal with property issues to the extent necessary to give effect to the protective objectives of family violence legislation’.[270]

Commissions’ views

16.257 Issues of ownership may be somewhat uncertain in the context of acquisition of personal property following relationship breakdown. The recommended approach leaves the resolution of such matters open where necessary, while providing immediate solutions regarding access to designated property in response to the safety concerns of victims.

16.258 Personal property directions may have repercussions for subsequent property proceedings in a federal family court. For example, where an order provides for furniture belonging to an excluded person to remain with the victim, there is scope for this to be put forward as a victim’s ‘property’ for the purpose of a declaration under s 78 of the Family Law Act. As discussed, where parties have access to federal family courts for the purpose of resolving property disputes, it is not appropriate for protection order proceedings to take the place of the dedicated processes set out in pt VIII of the Family Law Act.

16.259 Accordingly, the Commissions recommend a clear legislative statement in the family violence laws of each state and territory that a condition relating to personal property in a protection order does not affect any rights the victim or person who has used violence may have in relation to the ownership of the property. Section 88 of the Family Violence Protection Act 2008 (Vic) should be referred to as a model in this regard.

16.260 The Commissions further consider that even though the overriding effect of federal family court property orders is a clear consequence of s 109 of the Australian Constitution, family violence legislation should articulate the effect of inconsistent orders. Provisions in family violence legislation which mirror the constitutional principle play an important educative role. Such provisions clarify that personal property directions apply ‘in the absence of, or prior to, any determination of the property rights of the parties’, as stated in the Explanatory Memorandum for the Victorian family violence bill. The Commissions therefore recommend that family violence legislation should include provisions to the effect that a personal property direction in a protection order is subject to any order to the contrary made by a federal family court. Section 87 of the Family Violence Protection Act 2008 (Vic) provides an instructive model.

Recommendation 16–10 Application forms for protection orders under state and territory family violence legislation should clearly seek information about property orders under the Family Law Act 1975 (Cth) or any pending application for such orders.

Recommendation 16–11 State and family violence legislation should require courts, when considering whether to make personal property directions in protection order proceedings, to inquire about and consider any property orders under the Family Law Act 1975 (Cth), or pending application for such orders.

Recommendation 16–12 State and territory family violence legislation should provide that personal property directions made in protection order proceedings are subject to orders made by a federal family court or other court responsible for determining property disputes.

Recommendation 16–13 State and territory family violence legislation should provide that personal property directions do not affect ownership rights.

[186]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 37.

[187]Domestic and Family Violence Protection Act 1989 (Qld) s 25A(3). See also Family Violence Protection Act 2008 (Vic) s 86.

[188]Domestic and Family Violence Act 2007 (NT) s 85.

[189]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 37. Similarly see Restraining Orders Act 1997 (WA) s 13(5).

[190] The Domestic and Family Violence Act 2007 (NT) contains a section dealing with retrieval of an excluded person’s property only. However, return of personal property to a victim or a person who has used family violence is provided as an example of an order that can be made where it is just or desirable. Domestic and Family Violence Act 2007 (NT) ss 21(1)(c), 85. The Domestic Violence and Protection Orders Act 2008 (ACT) provides for the making of personal property directions for the benefit of victims in the context of exclusion orders, but is silent on this issue in relation to protection orders generally. Domestic Violence and Protection Orders Act 2008 (ACT) s 48(3).

[191]Justices Act 1959 (Tas) s 106B(5A).

[192] Australian Government Solicitor, Domestic Violence Laws in Australia (2009), [3.2.14].

[193] Protection order conditions are discussed in Ch 11.

[194]Restraining Orders Regulations 1997 (WA) reg 13.

[195]Domestic and Family Violence Act 2007 (NT) s 85(5).

[196]Family Violence Protection Act 2008 (Vic) s 86(b)(i).

[197] Ibid s 86(a).

[198] Explanatory Memorandum, Family Violence Protection Bill 2008 (Vic).

[199]Restraining Orders Act 1997 (WA) s 13(2)(e).

[200]Domestic Violence and Protection Orders Act 2008 (ACT) s 48(3).

[201]Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 12(g). This provision applies where a protection order is made generally—not only where an order contains an exclusion condition.

[202] Provisions in family violence legislation may also interact with residential tenancy laws. The interaction between such laws is outside the Terms of Reference for this Inquiry.

[203] New South Wales Law Reform Commission, Apprehended Violence Orders, Report 103 (2003),
[7.92]–[7.93].

[204] Consultation Paper, Question 9–6.

[205] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[206] Law Council of Australia, Submission FV 180, 25 June 2010.

[207] Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010. See also Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; National Legal Aid, Submission FV 232, 15 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010.

[208] Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[209] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010. See also Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[210] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010.

[211] Women’s Legal Services Australia, Submission FV 225, 6 July 2010.

[212] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; National Legal Aid, Submission FV 232, 15 July 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[213] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; National Legal Aid, Submission FV 232, 15 July 2010.

[214] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010.

[215] Ibid; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[216] Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[217] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[218] Queensland Government, Submission FV 229, 14 July 2010.

[219] A Lamb, Submission FV 121, 16 June 2010.

[220] Women’s Legal Services Australia, Submission FV 225, 6 July 2010.

[221] Confidential, Submission FV 96, 2 June 2010.

[222] Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010. See also National Legal Aid, Submission FV 232, 15 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010.

[223] Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[224] National Legal Aid, Submission FV 232, 15 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010.

[225] National Legal Aid, Submission FV 232, 15 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010.

[226] National Legal Aid, Submission FV 232, 15 July 2010.

[227] Consultation Paper, Proposal 9–6.

[228] Ibid, Question 9–7.

[229] National Legal Aid, Submission FV 232, 15 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; Women’s Legal Service Victoria, Submission FV 189, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010; Confidential, Submission FV 171, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 81, 2 June 2010; C Pragnell, Submission FV 70, 2 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[230] Confidential, Submission FV 171, 25 June 2010.

[231] Legal Aid NSW, Submission FV 219, 1 July 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[232] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[233] Queensland Law Society, Submission FV 178, 25 June 2010. Women’s Legal Service Qld also commented that Queensland police only permit recovery of property which is not in dispute, when officers accompany a person to collect items—although this may vary with different officers. Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[234] Queensland Law Society, Submission FV 178, 25 June 2010.

[235] Women’s Legal Services Australia, Submission FV 225, 6 July 2010 ;Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[236] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Confidential, Submission FV 184, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[237] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[238] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[239] Confidential, Submission FV 183, 25 June 2010.

[240] National Legal Aid, Submission FV 232, 15 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010;Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[241] Law Council of Australia, Submission FV 180, 25 June 2010.

[242] Legal Aid NSW, Submission FV 219, 1 July 2010.

[243] National Legal Aid, Submission FV 232, 15 July 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[244] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010.

[245] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[246] Damage to property as a form of family violence is discussed at Ch 5.

[247]Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 10(2)(c). This section also requires courts to take into account agreement or orders for the division of property under the Domestic Partners Property Act 1996 (SA).

[248] Section 20 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) also requires applicants to inform the court of any agreement or orders for the division of property under the Domestic Partners Property Act 1996 (SA).

[249] Magistrates Court of South Australia, Complaint for a Domestic Violence Restraining Order <www.courts.sa.gov.au/lawyers/index.html> at 9 February 2010.

[250] Consultation Paper, Proposal 9–7.

[251] Ibid, Proposal 9–8.

[252] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; National Legal Aid, Submission FV 232, 15 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; Women’s Legal Service Victoria, Submission FV 189, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 171, 25 June 2010 Berry Street Inc, Submission FV 163, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 81, 2 June 2010; Queensland Commission for Children and Young People and Child Guardian, Submission FV 63, 1 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[253] Queensland Law Society, Submission FV 178, 25 June 2010.

[254] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[255] National Legal Aid, Submission FV 232, 15 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010.

[256] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010.

[257] Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[258] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[259] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[260] Rec 30–8.

[261] Recs 30–6 and 30–7.

[262] Explanatory Memorandum, Family Violence Protection Bill 2008 (Vic).

[263] Ibid.

[264]Crimes (Domestic and Personal Violence) Act 2007 (NSW) a 67(4).

[265]Justices Act 1959 (Tas) s 106B(5B).

[266] Consultation Paper, Proposal 9–9.

[267] Ibid, Proposal 9–10.

[268] The following stakeholders supported both proposals: Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; National Legal Aid, Submission FV 232, 15 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; Women’s Legal Service Victoria, Submission FV 189, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 171, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 81, 2 June 2010; Queensland Commission for Children and Young People and Child Guardian, Submission FV 63, 1 June 2010 . The first proposal also attracted support from the following stakeholders: Legal Aid NSW, Submission FV 219, 1 July 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010. The second proposal also attracted support from the following stakeholders: Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 164, 25 June 2010.

[269] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[270] Queensland Commission for Children and Young People and Child Guardian, Submission FV 63, 1 June 2010.