Outcomes of protection order proceedings

18.151 The final section of this chapter considers three outcomes of protection order proceedings that may be particularly problematic where parties are also engaged, or likely to be engaged, in family law proceedings. These are where:

  • a person seeking a protection order agrees to withdraw the application on the basis of undertakings given by the respondent to the court;

  • a protection order is made by consent; and

  • the respondent to an existing protection order makes a ‘cross application’ for a protection order against the person who sought the original order, resulting in mutual orders.

18.152 This section also considers provisions in state and territory family violence legislation which address the misuse of protection order proceedings—in particular, provisions to prevent vexatious litigation.

Undertakings

18.153 A person seeking a protection order may agree to withdraw his or her application on the basis that the person against whom the protection order is sought (the respondent) provides an undertaking. An undertaking is a promise to the court that a person will do, or refrain from doing, certain things. Usually, the undertaking will include the same types of conditions and prohibitions which could have been included in the protection order had it been issued. Undertakings may either be given orally by the respondent or the respondent’s lawyer, or given in writing and signed. It is also possible for both the applicant and respondent to give undertakings to the court.

18.154 Some stakeholders expressed the view that undertakings perform an important role in protection order proceedings. For example, the Gosnells Community Legal Centre submitted that undertakings:

provide an opportunity for the parties to negotiate and resolve the matter without the need for a trial, which generally speaking is something which the victims are anxious of and keen to avoid. It also is of a benefit to the perpetrator, as it is not an order of the court; however they are still held accountable for their actions.[167]

18.155 However, stakeholders also expressed a number of concerns about the use of undertakings in protection order proceedings.

18.156 First, unlike breach of a protection order, breach of an undertaking is not a criminal offence and cannot be enforced.[168] Agreeing to an undertaking instead of pursuing an application for a protection order may, therefore, compromise the protection and safety of a victim of family violence.[169] For this reason, some stakeholders disagreed in principle with the idea that undertakings should be used.[170] Stakeholders noted that victims of family violence who have accepted an undertaking often return to court to seek a protection order because the undertaking has been breached.[171] In such cases, both the undertaking and the breach may be used as evidence in support of an application for a protection order.[172]

18.157 Secondly, there is a concern that victims of family violence may be pressured into withdrawing an application for a protection order and accepting an undertaking,[173] particularly where that party is unrepresented.[174]

18.158 Finally, the Initiating Application (Family Law) form, which must be completed by a person wishing to commence proceedings in a federal family court, asks if there are any existing undertakings to a court about family violence issues concerning any of the parties or children in the application.[175] There is, however, no obligation on parties to inform a court exercising jurisdiction under the Family Law Act about undertakings in relation to family violence, nor is the existence of an undertaking a specified factor to be considered when determining the best interests of a child. A number of stakeholders expressed the view that while information about undertakings is sometimes included in affidavits, federal family courts give them little weight because undertakings are not orders of a court.[176]

Submissions and consultations

18.159 In the Consultation Paper, the Commissions suggested measures to ensure that the applicant and respondent are both advised of the nature and effect of undertakings. The Commissions proposed that, before accepting an undertaking, a state or territory court should be satisfied that:

  • the applicant understands the implications of withdrawing the application and relying instead on undertakings to the court by the respondent; and

  • the respondent understands that, in accepting an undertaking rather than pursuing an application for a protection order, the applicant is not precluded from making a further application if the respondent does not honour the undertaking, or the applicant continues to be at risk of family violence.[177]

18.160 The Commissions also proposed that an undertaking should be given in writing, rather than orally to the court.[178] This would allow both parties to keep a copy of the undertaking, reducing the potential for ambiguity or confusion about the scope or content of the undertaking.

18.161 Stakeholders recognised that, in many cases, undertakings perform an important role in protection order proceedings. Most stakeholders agreed with the Commissions’ proposals to ensure both parties are advised of the nature and effect of undertakings. [179]

18.162 A number of stakeholders emphasised the importance of ensuring that parties, particularly unrepresented parties, understand the implications of giving and accepting an undertaking.[180] For example, Legal Aid NSW and the Women’s Domestic Violence Court Advocacy Service Network commented:

If undertakings are proposed all parties should be properly and appropriately informed of the limitations of undertakings compared to protection orders and the lack of consequences of any breach. Specifically, the court should reinforce to the applicant that they have a right to seek a protection order rather than accepting an undertaking.[181]

18.163 Some stakeholders submitted that family violence legislation should be amended to require judicial officers to explain the effect of undertakings and to require undertakings to be in writing.[182] The Queensland Law Society supported this proposal, provided judicial discretion to refuse to accept an undertaking was maintained. It suggested information about how to deal appropriately with undertakings could be included in judicial bench books, rather than formalising the process for undertakings in legislation.[183]

18.164 Other stakeholders suggested that the provision of legal and non-legal support services at court would help parties understand undertakings.[184] Domestic Violence Victoria and others submitted that:

Providing information to an applicant about the implications of a decision to accept an undertaking is critical and is best provided by appropriate support at court. However, clear written material can also assist applicants (and non-legal support workers) to understand the impact of accepting an undertaking.[185]

18.165 Two stakeholders suggested that there should be a standard form for written undertakings, which sets out information about undertakings and includes a space for parties to sign to acknowledge that they understand the effect of the undertaking.[186] The Magistrates’ Court and Children’s Court of Victoria explained that:

The Courts have developed a form of written undertaking which identifies that an undertaking is not the same as an intervention order and cannot be enforced by police. This has been operating for many years and has improved the community’s understanding of the limited value of undertakings.[187]

18.166 A number of stakeholders emphasised the need to ensure that undertakings are only offered and accepted in appropriate cases—that is, where there is a low possibility of a later breach of the undertaking. They emphasised that, where there is a pattern of family violence, an undertaking may not be appropriate and the victim should receive support to seek a protection order. [188]

18.167 Finally, stakeholders in the Northern Territory emphasised the usefulness of undertakings in protecting victims of family violence. In particular, respondents often fear that a protection order will result in the loss of their gun licence, making them more likely to oppose a protection order, and more willing to agree to undertakings.[189]

Commissions’ views

18.168 Undertakings given in protection order proceedings may form part of the factual circumstances and evidence of family violence that should be considered by the family court. In Chapter 17, the Commissions recommend that the Family Law Act should be amended to require a court to consider any family violence—including evidence given, or findings made, in relevant protection order proceedings—when determining what is in the best interests of the child.[190] This requirement would include evidence that undertakings about family violence were given to a court in protection order proceedings. The weight to be given to an undertaking in such cases would be determined by the federal family court in all the circumstances of the case.

18.169 The Commissions recognise that a victim of family violence may wish to avoid a contest in court and may therefore agree to withdraw his or her application for a protection order on the basis that the respondent gives an undertaking not to engage in family violence or other proscribed conduct. In such cases, the Commissions consider that it is essential that both parties understand the effect of the undertaking. In particular, it is important that the parties understand that breach of an undertaking is not a criminal offence and cannot be enforced by police. Further, the respondent should also understand that, in accepting an undertaking rather than pursuing an application for a protection order, the applicant is not precluded from making a further application if the respondent does not honour the undertaking, or the applicant continues to be at risk of family violence.

18.170 In the Commissions’ view, the most effective way to ensure that parties are advised of these matters is to require that undertakings be given in writing on a standard form. The form should clearly set out the effect of an undertaking and require both the applicant and the respondent to state that they agree to the specific undertaking and acknowledge the nature and effect of an undertaking to the court.

18.171 Requiring that the undertaking be given in writing, rather than orally to the court, also means that both parties can have a copy of the undertaking which reduces the potential for ambiguity or confusion about the scope or content of the undertaking. A requirement that undertakings be given in writing also facilitates consideration of the undertaking by federal family courts, in that it can easily be attached to an application or affidavit given in family law proceedings.

18.172 The Commissions do not consider it strictly necessary for this requirement to be set out in family violence legislation in each state and territory. The objectives could also be achieved by amendments to court rules, practice notes or bench books, or by providing a standard form of written undertaking to parties and their legal representatives.

18.173 Stakeholders have expressed concerns that undertakings are only accepted by courts in appropriate circumstances—such as where there is an isolated incidence of family violence, or a low possibility that the undertaking will be breached—and where there is no undue pressure or intimidation by the respondent. In addition to ensuring that parties have access to appropriate legal advice and support, education and training for judicial officers about the nature of family violence and the appropriate use of undertakings to the court in family violence matters[191] would help address this concern.

Recommendation 18–4 State and territory courts should require that undertakings by a person against whom a protection order is sought should be in writing on a standard form. The form should require each party to sign an acknowledgment that he or she understands that:

(a) breach of an undertaking is not a criminal offence nor can it be otherwise enforced;

(b) the court’s acceptance of an undertaking does not preclude further action by the applicant to address family violence; and

(c) evidence of breach of an undertaking may be used in later proceedings.

Protection orders made by consent

18.174 All state and territory family violence legislation includes provisions that allow a court to make a final protection order where the applicant and the respondent consent to the order.[192] These provisions generally provide that:

  • if the order is made by consent, the court is not required to make any findings as to whether the grounds for making the order are satisfied—for example, that there has been a particular act of family violence; and

  • a court can make an order on the basis that the respondent disputes some or all of the allegations made in the application—that is, ‘without admissions’.[193]

18.175 It is important to note, however, that a court is not obliged to make a protection order simply because the parties have consented to that order—for example, a court may refuse to make an order if it believes that the order may pose a risk to the safety of one of the parties or a child.[194]

18.176 Stakeholders expressed particular concerns about the interaction between protection orders made by consent and federal family law proceedings. As discussed above, s 60CC(3)(k) of the Family Law Act requires a federal family court, when determining what is in the best interests of a child, to consider any protection order that applies to the child or a member of the child’s family, but only if the protection order is a final order or its making was contested.

18.177 Where a final protection order is made by consent, it will fall within the kinds of protection orders that may be considered by a federal family court under s 60CC of the Family Law Act. While the Explanatory Memorandum to the 2006 amendments, which introduced the provision, stated that the intention of the provision was ‘to ensure that the court does not take account of uncontested’ protection orders,[195] the words of s 60CC(3)(k)—which direct a court to consider a protection order if ‘the order is a final order; or the making of the order was contested by a person’—arguably suggest otherwise as a consent order is a final order. However, it has been suggested that protection orders made by consent, particularly consent without admissions, may be understandably seen to have less weight when it comes to proving allegations of family violence in family law proceedings.[196]

18.178 A number of factors contribute to the fact that a large percentage of protection orders are made by consent, and commonly by consent without admission of liability.

18.179 By consenting to a protection order, both parties may avoid having to attend a contested hearing before a magistrate, often on another day, and ensure that an order is in place to protect the person from family violence within a short period of time.[197] This benefits the parties as well as the court, as matters are resolved quickly and without the need for further hearings.

18.180 Further, by making a protection order by consent without admissions, the respondent can consent to the protection order being in place without admitting to any of the allegations made against him or her. This protects the respondent’s legal rights with respect to other legal proceedings, both criminal and civil, in which he or she may be involved. Sometimes the respondent may consent without admissions to a protection order in circumstances where there are no potential legal proceedings. One stakeholder noted that:

Situations arise where defendants do not agree with the facts as portrayed by the applicant, but are happy to stay away. In this case, accepting the terms of the restraining order, while making a public statement that they are not guilty of any of the behaviours justifying it, is a happy compromise for both parties.[198]

18.181 Similar considerations may inform a decision to consent to a protection order in a situation where protection orders are made against both parties as the result of a cross-application.

18.182 In addition to the limited evidentiary value such orders have in family law proceedings, there are some drawbacks to the practice of making consent orders without admissions. In particular, the Commissions have heard throughout this Inquiry that an applicant for a protection order may rarely be given an opportunity to oppose the order being made without admissions. This means that the applicant loses the opportunity to put detailed evidence before the court and for the court to make findings of family violence. Professor Rosemary Hunter has noted that this means there are few findings by the courts that allegations of family violence are true. In her view, this ‘lack of institutional affirmation of women’s stories of abuse’ reinforces notions that women invent or exaggerate allegations of family violence and use the legal system for collateral purposes.[199]

18.183 Hunter also expressed concerns about courts relying on consent in the context of family violence which is characterised by the exercise of power and control by one partner over the other.[200] The consent of the applicant is particularly relevant where the person against whom the order is to be made seeks to vary the terms of the order. In such circumstances, courts should not assume that the parties have equal negotiating power, or that intimidation or threats will not influence the consent given by a victim of family violence.

Submissions and consultations

18.184 In the Consultation Paper, the Commissions proposed several options to improve the scrutiny and quality of the processes by which protection orders are made by consent. The Commissions proposed that state and territory family violence legislation should place an obligation on judicial officers, when making orders by consent, to ensure that:

  • the notation on protection orders and court files specifically states that the order is made by consent ‘without admission as to criminal liability of the allegations in the application for the protection order’;

  • the applicant has an opportunity to oppose an order being made by consent without admissions;

  • the order gives attention to the safety of victims and, if appropriate, requires that a written safety plan accompanies the order; and

  • the parties are aware of the practical consequences of consenting to a protection order without admission of liability.[201]

18.185 While some submissions expressed support for the proposal in general,[202] a number of stakeholders commented separately on specific aspects of the proposal.

‘By consent and without admission’ notation

18.186 A number of stakeholders supported the proposal that the notation on protection orders specifically state that the order is made by consent ‘without admission as to criminal liability of the allegations in the application for the protection order’.[203] For example, Women’s Legal Service Victoria submitted that:

Even [in] instances where a person has been apprehended by police due to very serious injury to the victim, the offender usually resolves the matter by consent without admissions. In almost all instances, orders are made by consent without admissions and the Magistrate will not probe further. It is our view that such orders should instead be made by consent without admissions as to criminal liability. That way, it is clear to future judicial officers in other jurisdictions that that the offender is not denying the fact of family violence but is seeking to protect himself from criminal liability.[204]

18.187 However, the Magistrates’ Court and Children’s Court of Victoria noted that respondents may also be liable for civil compensation and, as such, the ‘without admissions’ notation cannot be limited to criminal proceedings.[205] Similarly, protection orders made by consent without admissions are made in a range of circumstances other than where there are potential criminal charges.[206]

Opportunity to oppose the order being made by consent

18.188 Some stakeholders emphasised the importance of victims having an opportunity to oppose a protection order being made by consent without admissions, and submitted that an applicant may have strong evidence of family violence and should be given the opportunity to present it to the court. These stakeholders supported the view that a federal family court, when considering parenting orders, should look behind the protection order to the factual circumstances of family violence, rather than be limited by concerns about whether the order was made by consent or consent without admissions.[207]

18.189 The Local Court of NSW submitted that parties may still bring some matters before the court, even where the order is made by consent. It noted that NSW family violence legislation allows a court to make orders by consent,

while still enabling the court to conduct a hearing as to the particulars of the application if required in the interests of justice. A situation that often arises is where a defendant consents to the making of an order, but there is some disagreement as to the appropriate conditions.[208]

18.190 A number of stakeholders expressed concerns about providing applicants with an opportunity to oppose the protection order being made by consent. In particular, some stakeholders identified practical and resource implications of greater judicial scrutiny in magistrate’s courts. For example, the Law Society of NSW submitted:

An order made by consent without admissions is one means of getting a quick and acceptable result for the parties and the courts. To be able to set such matters down for hearing will test the resources of the courts, increase delays for litigants and hence potentially increase tensions in family situations. The object of reducing family violence would not be served by this proposal.[209]

18.191 While the Magistrates’ Court and Children’s Court of Victoria also recognised the considerable resource implications associated with the proposal, the Courts accepted that applicants should be allowed this option.[210] The Aboriginal Family Violence Prevention and Legal Service Victoria noted that, in practice, it would be difficult to get legal aid funding to contest a protection order on this basis.[211]

18.192 In addition, the Department of Premier and Cabinet (Tas) considered that the proposal was ‘problematic’ because ‘the benefit of requiring the State courts to have the hearing when the factual determination is really something wanted in another proceeding may be seen as a cost-shifting exercise’.[212] Stakeholders also queried whether it would be warranted to spend additional court time hearing opposition to orders where immediate safety concerns are being met by the orders.[213]

Ensuring the order gives attention to the safety of the victim

18.193 While supporting the need to ensure that the protection order adequately protects the applicant from the risk of family violence, some stakeholders queried the role of a safety plan in consent orders. A number of stakeholders submitted that, because the conditions in the protection order are designed to protect the applicant’s safety, a separate safety plan is unnecessary.[214] Others considered that while there may be value in a safety plan, its preparation may delay the process of issuing a protection order.[215]

18.194 The Magistrates’ Court and Children’s Court of Victoria noted that ‘many safety plans will not be effective if their contents are known to the respondent’ and considered that it may be more appropriate to enable the court to direct the preparation of a safety plan without a requirement for the plan to accompany an order.[216]

18.195 The Shoalcoast Community Legal Centre questioned whether a judicial officer should be involved in the preparation of a safety plan and submitted it may be a task better performed by a support service with properly trained staff on the basis that it would require extensive case management and training to work with a victim to determine the complexities of a safety plan.[217]

Explanation of the consequences of consent without admissions

18.196 A number of stakeholders stated that there is value in requiring judicial officers to explain to the parties the practical consequences of consent without admission of liability.[218] The Queensland Law Society submitted that it is particularly important for judicial officers to explain the practical consequences of consenting to a protection order without admission of liability to an unrepresented party. It noted that judicial officers and magistrates as well as police prosecutors regularly explain the consequences of consenting to protection orders to respondents.[219]

18.197 The Local Court NSW noted that s 76 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) requires judicial officers to explain the effect and consequences of the protection order and the rights of the parties to the defendant and the protected person when making the order.[220] It added that:

In determining how a matter is to proceed, it is also commonplace for magistrates to explain the option of consenting without admission to the parties. However, the main shortcoming with these measures is that a defendant or protected person may not be in attendance when an order is made, with the consequences that magistrates are not able to ensure that the parties are informed of the matters set out in s 76.[221]

18.198 Conversely, Anita Brunacci submitted that advice in relation to the practical consequences of ‘without admissions’ orders is not the place of the court and could be seen as a matter for the provision of legal advice.[222]

Other implications of the proposal

18.199 Some stakeholders noted that consent orders are an important option for victims of family violence and that care should be taken not to compromise the accessibility and effectiveness of consent orders. For example, the Local Court NSW noted the possible consequences of making protection orders by consent without admission, including the potential impact upon family law proceedings, but considered, on balance, that:

the making of orders by consent without admission can be beneficial to both parties. Having regard to the often volatile nature of protection order proceedings, being able to make an order by consent without admission results in a reduction of contested applications and whilst enabling conditions to be imposed for the protection of the protected person.[223]

18.200 Brunacci submitted that the most important aspect of state and territory family violence legislation is obtaining protection for victims of family violence:

The prevailing principles of state family violence legislation are the protection of victims of family violence or those with fear of future violence stemming from a change in a significant relationship The option of orders made ‘without admissions’ allows for the principle of the legislation to be exercised without undue strain on the court system.[224]

18.201 Another stakeholder noted that it may be more difficult to get parties to agree to consent orders if those orders can be used to imply the presence of violent behaviour for the purposes of family law matters.[225] An approach that focuses on family court processes, such as screening for family violence, as recommended by the Chisholm Review, was preferred—rather than burdening the protection order regime:

The process for obtaining [protection orders] occurs in a chaotic and crowded courtroom, often with a huge list and limited time. [Protection orders] are a simple and expedient process to ensure individuals receive the protection they need quickly, simply and inexpensively. It would be a mistake to burden this process with too much complexity, or to give its outcomes far reaching ramifications beyond the issue at hand.[226]

Commissions’ views

18.202 In the Commissions’ view, the ability to make protection orders by consent is important to the effective operation of state and territory family violence regimes and to facilitate access to legal responses to family violence. In many instances, a consent order can be obtained to protect applicants from the risk of family violence without the need for a formal contested hearing. This avoids the stress and costs associated with court hearings, while achieving the key purpose of family violence legislation—the protection of persons from family violence.

18.203 It is not necessary or appropriate to add procedural steps to the protection order process solely in order to improve the evidentiary value of protection orders in subsequent family law proceedings and other recommendations have been made in this regard. A protection order made by consent remains a court order. Many people who seek a protection order will never need to consider family law proceedings—either because they are not in a married or in a de facto relationship with the person who has used violence or because issues that require resolution by family courts do not arise.

18.204 The Commissions consider that it is preferable to amend the Family Law Act to address concerns that protection orders made by consent, and consent without admissions, are not appropriately considered by federal family courts when making parenting orders. In Chapter 17, the Commissions recommend amendments to the Family Law Act so that, when determining what is in the best interests of a child, federal family courts in considering any protection order that applies to the child or member of the child’s family should focus on the factual circumstances of family violence behind that order—the evidence of family violence given, or findings made, in relevant family violence protection order proceedings.[227] Clarifying the Family Law Act in this way will address the perception that consent orders are irrelevant to determining the best interests of the child, and focus attention instead on the evidence of family violence behind the protection order.

18.205 Further, while some of the options proposed in the Consultation Paper were supported, none were without problems. In particular, the Commissions do not consider that it is appropriate or feasible to limit the ‘without admissions’ to criminal liability notation, because respondents should also be able to contest allegations in civil proceedings.

18.206 Providing an opportunity for applicants to oppose the making of the order by consent also risks protection order proceedings being used for purposes other than to secure the safety of victims of family violence. If the parties cannot agree that an order should be made, or upon what conditions, or there is a concern that the parties cannot give free and informed consent to the order, the court will need to determine the matter. For example, if there is a concern that the conditions in the order are not adequate to protect the applicant from the risk of family violence, the matter may need to proceed to a hearing. Requiring courts to determine whether there has been family violence or if there is a risk of family violence in circumstances where such findings are not required would have significant resource implications and place a heavy burden on state and territory courts, and the parties to protection order proceedings themselves.

18.207 Finally, while there are benefits in requiring courts to advise parties of the effect and consequences of a consent order, family violence legislation in most states and territories already requires courts to explain the nature and effect of the protection order to the parties. In light of the amendments to the Family Law Act recommended in Chapter 17, the Commissions do not consider that it is necessary for judicial officers in state and territory courts to comment on the possible effect of making a protection order by consent on concurrent or pending family law proceedings.

Cross applications and mutual protection orders

18.208 A cross application is an application for a protection order made by the respondent to a current application against the person seeking the original protection order. While cross applications may be brought in legitimate circumstances—for example where both parties have engaged in violent conduct and there is a risk that the same or other family violence will be repeated—there is a concern that cross applications are often brought as a tactic or bargaining tool in existing protection order proceedings or anticipated family law matters, rather than because a person feels at risk of family violence.[228]

18.209 Cross applications brought in such circumstances raise a number of issues with respect to the safety of a victim of family violence and the inappropriate use of legal proceedings. In some cases, a cross application can be used to coerce or pressure a victim of family violence into withdrawing his or her original application.[229]

18.210 In other cases, a cross application may pressure the victim of family violence into consenting to mutual protection orders—that is, where the court makes protection orders that restrict the behaviour of both parties. Mutual orders have been criticised on the basis that they do not promote responsibility and accountability for those who use family violence and are difficult for police to enforce.[230]

18.211 In order to address some of these concerns, the VLRC, in its review of family violence laws, stated that legislation should limit the ability to make mutual protection orders by consent. It also recommended that mutual protection orders should not be made unless the court is satisfied that there are sufficient grounds for making orders against each party on the basis that each party has committed family violence.[231] Similarly, in the Consultation Paper, the Commissions proposed that state and territory family violence legislation should provide that mutual protection orders may only be made by a court where it is satisfied of the grounds for making a protection order against each party.[232]

Submissions and consultations

18.212 In response to the Consultation Paper proposal, many stakeholders agreed that state and territory family violence legislation should provide that mutual protection orders should only be made where the court is satisfied that there are grounds for making a protection order against each party.[233]

18.213 In supporting the proposal, Legal Aid NSW noted that:

Too often mutual protection orders are offered as a resolution to the matter at court to appease the defendant without considering the merit of their application. Our experience is that defendants often rely on cross-applications to further harass and threaten the victim and pressure them into withdrawing the initial application.[234]

18.214 The Aboriginal Family Violence Prevention and Legal Service Victoria also supported the proposal, on the basis that:

To resolve applications victims may consent to mutual orders which then tends to minimise the family violence which was the subject of the initial application and which allows ongoing controlling behaviour by the perpetrator.[235]

18.215 Professor Julie Stubbs submitted that it is especially important to ensure that parties are aware of the practical consequences of consenting to protection orders where such orders are made against both parties as a result of cross applications:

It is a concern that in some circumstances the person who appears most in need of protection consents to having an order made against them in order to also achieve an order against the other party, without full understanding of the ramifications of this (eg criminal charges on breach and how the existence of an order might be construed in family law proceedings).[236]

18.216 Stubbs considered, however, that the proposal may simply restate the existing legal position. She suggested that other measures, such as education and training for judicial officers, police, lawyers and court staff may also be required.[237]

18.217 Women’s Legal Services NSW did not support the proposal, submitting that:

Each application should be considered on its merits and any variety of outcomes are possible upon evidence being heard. Courts are already required to be satisfied that there are grounds for making a protection order against a party, in the context of mutual and individual protection orders. The criteria for mutual or cross protection orders should be, and are, the same as for an individual protection order.[238]

18.218 Wangmann noted that the most concerning problem with cross applications was not so much the making of mutual orders, but rather that cross applications pressured victims of family violence to withdraw their applications entirely. She noted that her study of cross applications in NSW courts found that when cross applications were heard separately (usually because of a time gap between the applications) it generally resulted in only one person obtaining a protection order while the other person was unsuccessful. In contrast, when applications were heard together there appeared to be an approach that dealt with them as a ‘pair’ resulting in the same outcome (mutual withdrawal or mutual protection orders).[239] Wangmann submitted that:

there needs to be some direction to examining each claim separately and considering separate outcomes. This does not necessarily mean separate listing (which can be very resource intensive for cases that may be contesting the same incident), but a direction to consider the separate and individual nature of each claim.[240]

18.219 This idea was reflected in submissions that noted that it would assist if courts were better able to identify the ‘primary aggressor’.[241]

Commissions’ views

18.220 While cross applications can be made for legitimate reasons, the concerns expressed by stakeholders about the misuse of cross applications suggest that some reforms are required. The Commissions consider that safeguards are necessary to prevent the misuse of cross applications for protection orders where cross applications are made for tactical reasons—for example, to pressure the original applicant into withdrawing that application, to agree to mutual protection orders, or to affect family law proceedings.

18.221 The Commissions agree with the approach recommended by the VLRC to place restrictions on making mutual protection orders by consent, requiring cross applications to be considered by a court, and that mutual protection orders be made only where the court is satisfied that there are sufficient grounds for making a protection order against each party. This approach would mean that the court considers the claims made in each application separately and on its merits, identifying and responding to the individual requests for protection.

18.222 While this recommendation does not directly address the situation where a cross application made without grounds pressures a victim of family violence to withdraw his or her application altogether, consideration of abuse of the legal system is discussed below in relation to vexatious proceedings.

Recommendation 18–5 State and territory family violence legislation should provide that:

(a) mutual protection orders should not be made by consent; and

(b) a court may only make mutual protection orders where it is satisfied that there are grounds for making a protection order against each party.

Vexatious proceedings

18.223 Vexatious proceedings are legal proceedings brought or continued without reasonable grounds or for wrongful purposes—such as to harass or annoy the other party, or to cause delay or detriment.

18.224 Vexatious litigation may arise in a number of ways in protection order proceedings. For example, repeated applications for a protection order may be made against the same person based on the same or similar allegations and by the respondent to vary or revoke a protection order. Cross applications for protection orders may also be made without legal grounds.

18.225 While such applications may not, in themselves, be vexatious, where they are repeated or made without legal grounds, concerns arise that people who have committed family violence may use the legal system to further harass, control and abuse the victim.[242]

Vexatious applications for protection orders

18.226 Courts can deal with vexatious litigation using a range of provisions in family violence legislation, other legislation or rules of court that deal with vexatious court proceedings. While legislation differs across jurisdictions, it generally allows courts to dismiss vexatious applications[243] and award costs against a person who has brought a vexatious application.[244]

18.227 Family violence legislation in New South Wales and South Australia allows a court to dismiss an application on the grounds that it is frivolous, vexatious, without substance or has no reasonable prospect of success.[245] In other jurisdictions, court rules generally allow courts to stay or dismiss vexatious applications. [246]

18.228 While dismissing the application and awarding costs may deal with a particular vexatious application, these measures do not prevent a person making further vexatious applications that harass the other party and abuse court processes. As a result, legislation in some jurisdictions allows a court to declare a particular person to be a vexatious litigant, with the effect that that person may not commence new proceedings without leave of the court.

18.229 The Family Violence Protection Act 2008 (Vic) is the only state or territory family violence legislation that permits the court to make orders with respect to vexatious litigants. The Act allows the Attorney‑General, a person against whom the applications have been made, or a person with leave of the court, to apply for an order declaring a person to be a vexatious litigant.[247] The Chief Magistrate, Deputy Chief Magistrate or the President of the Children’s Court may make such an order, if satisfied that the person has ‘habitually, persistently and without reasonable ground instituted proceedings under this Act against the same person’.[248] A person declared to be a vexatious litigant cannot make an application for an order, cross application, variation, revocation or extension of an order, without leave of the court. The Act also includes provisions to allow a person who has been declared a vexatious litigant to appeal that decision.[249]

18.230 In Queensland and Western Australia, the relevant magistrates’ courts have a general power to prohibit a person from commencing certain proceedings without leave of the court.[250] In other states and territories, rules of court or legislation governing vexatious proceedings permit only supreme courts to declare a person to be a vexatious litigant, or to require that a person seek leave before commencing further legal proceedings.[251]

Applications to vary or revoke protection orders

18.231 In addition to concerns about vexatious applications, there are also concerns that some respondents make repeated applications to vary or revoke a protection order as a way to harass or intimidate a person who has obtained a protection order against him or her. State and territory family violence legislation contains differing procedures to vary or revoke a protection order, depending on whether the order was issued by a court or by police. This section is concerned only with protection orders made by a court.

18.232 State and territory family violence legislation generally provides that a court may vary or revoke a protection order. The most common ground for doing so is where the court is satisfied that there has been a change in circumstances since the original order was made.[252]

18.233 In South Australia, legislation specifically provides that the court has the power to dismiss an application to revoke or vary a protection order, without receiving evidence or submissions from the protected person, if the application is frivolous or vexatious.[253]

18.234 Family violence legislation in Victoria, Western Australia and the Northern Territory requires a respondent to seek leave of the court before making an application to vary or revoke a protection order.[254] The Victorian legislation implemented a recommendation made in the VLRC’s review of family violence laws, which considered that the requirement to seek leave was

a necessary safeguard against court processes being used as a form of further abuse. It will ensure that a protected person only needs to attend court to defend the application where the respondent has demonstrated to a magistrate that there may be grounds for granting the application.[255]

18.235 When seeking to vary or revoke a protection order under the Family Violence Act 2004 (Tas), both the original applicant and the respondent are required to seek leave in relation to protection orders made by a court, as opposed to police-issued protection orders.[256] There are no similar requirements in other family violence legislation.

Submissions and consultations

18.236 In the Consultation Paper, the Commissions considered several measures to address the problem of vexatious litigation in protection order proceedings. The Commissions asked whether state and territory family violence legislation should allow a court to:

  • make an order that a person who has made two or more vexatious applications for a protection order against the same person may not make a further application without the leave of the court; or

  • dismiss a vexatious application for a protection order at a preliminary hearing before a respondent is served with that application.[257]

18.237 The Commissions proposed that state and territory family violence legislation should require a respondent to a protection order to seek leave from the court before making an application to vary or revoke the protection order.[258]

Vexatious applications for protection orders

18.238 Some stakeholders submitted that vexatious litigation in protection order proceedings was rare, and, when it arose, that courts have adequate powers to appropriately manage vexatious litigation.[259] For example, South Australian Magistrate Andrew Cannon submitted that:

I am not aware that vexatious applications for protection orders are a systemic problem in this State. The police are the complainant in these matters in this State and that seems to act [as] a protection against general abuse. Where abuse occurs the present system can manage that appropriately.[260]

18.239 Wangmann and Stubbs cautioned that care was required when considering vexatious litigation in the context of protection order proceedings. Wangmann identified two key concerns in dealing with vexatious litigants. First, she noted the difficulty involved in identifying what might be a vexatious application:

While a number of applications are clearly vexatious (this is evident from the type of, or absence of, grounds to seek a protection order) many are not so clearly identifiable. Many applications do, on their face, raise allegations about acts or behaviours that would be captured by the various legislative schemes—the question is whether these acts or behaviours on their own should warrant a family violence response in the form of a protection order?[261]

18.240 Secondly, Wangmann submitted that multiple applications alone do not mean that the litigation is vexatious. For example, some applicants withdraw multiple applications for protection orders before they proceed with an application to finalisation.[262] Similarly, Stubbs noted that some complainants may need to make repeated applications over time, due to breach or a change of circumstances. She cautioned that:

There is a risk that if this is not handled well it could have little effect on people bringing non-meritorious applications, but may deter complainants from seeking necessary variations, or new orders on the expiry of previous orders, which might then be characterised by the other party as vexatious.[263]

18.241 Some stakeholders supported the idea that courts should be empowered to make an order that a person who has made two or more vexatious applications for a protection order against the same person should require leave for any further application.[264] The Peninsula Community Legal Centre, for example, submitted that:

This enables some protection for people who may be forced to defend repeated and unreasonable applications for protection orders and prevents abuse of the system pertaining to protection orders.[265]

18.242 In addition to allowing courts to make a declaration that a person is a vexatious litigant, the Magistrates’ Court and Children’s Court of Victoria submitted that:

a provision requiring a court to grant leave for applications that are made subsequent to the refusal of an application against the same person is appropriate without the need to refer to those applications as ‘vexatious’. If leave is not granted, the application should be struck out.[266]

18.243 Some stakeholders also supported permitting a court to dismiss a vexatious application for a protection order at a preliminary hearing before a respondent is served with that application.[267] The Queensland Law Society noted that it is ‘not unusual for a Queensland magistrate to dismiss a vexatious application at a mention, rather than at a hearing where the application, on its face, is clearly an abuse of process’.[268]

18.244 Finally, a number of stakeholders also expressed the view that some applicants make vexatious applications for protection orders in order to gain a strategic advantage in family law matters.[269]

Applications to revoke or vary a protection order

18.245 A number of stakeholders agreed that state and territory family violence legislation should require a respondent to a protection order to seek leave from the court before making an application to vary or revoke the protection order.[270]

18.246 Some stakeholders raised concerns about the proposal. Women’s Legal Service Queensland expressed concern, for example, about the implications of the proposal where the applicant for a protection order is a serial abuser of litigation and a victim of family violence is the respondent.[271] Others opposed the proposal on the basis that a respondent should have access to a judicial determination.[272]

[T]here are many occasions in which applications for revocation or variation brought by the respondents ought to be legitimately heard in court and that there ought not be barriers to the bringing of those applications.[273]

18.247 There were also concerns that the proposal may give rise to difficulties in varying protection orders which may in turn result in parties breaching the order rather than seeking variation.[274]

Commissions’ views

18.248 The Commissions recognise the issues and difficulties raised by vexatious litigation in the context of family violence. In addition to traditional concerns about the impact on public resources, vexatious applications in protection order proceedings may operate as a means to harass or intimidate victims of family violence.

18.249 In light of the dynamics of family violence, it may also be difficult to identify what is a vexatious application or who is a vexatious litigant—for example, where multiple applications are made by a person who may be a victim of long term family violence.

18.250 Some stakeholders indicated that vexatious litigation in protection order proceedings is uncommon; but others disagreed. There has been scant research into the nature and incidence of vexatious litigation in protection order proceedings. Clearly, however, where vexatious litigation occurs, courts should be empowered to adequately manage the problem.

Vexatious applications for protection orders

18.251 There is a need to ensure that courts are able to protect people from having to defend unreasonable and repeated protection order applications. However, care needs to be taken when considering proposals which may restrict or deter people who have experienced family violence from seeking a protection order. This is particularly so when, for example, a victim may need to make multiple applications for a protection order; or where applications do not engage the legal definition of family violence or provide sufficient evidence, but are not vexatious.

18.252 The Inquiry received little information to suggest that the current range of provisions across jurisdictions is inadequate to deal with vexatious litigation. Accordingly, the Commissions do not make recommendations with respect to vexatious applications for protection orders. However, this is an area which warrants ongoing monitoring. The Victorian family violence legislation, which contains comprehensive provisions to deal with vexatious applications and litigants, may serve as a useful model if problems are shown to exist.

Applications to revoke or vary a protection order

18.253 There is clearly merit in ensuring that a variation or revocation of a protection order is only sought by the respondent where there are reasonable grounds to do so—such as a change in the circumstances since the original order was made—which would help protect victims of family violence against vexatious applications.

18.254 However, introducing additional procedural hurdles, such as requiring that a respondent seek leave from the court, may make the process of varying or revoking protection orders less accessible. If it is too difficult to vary or revoke a protection order, this may result in breach and has the potential to undermine the effectiveness of the protection order regime.

18.255 In the Commissions’ view, provisions which require a respondent to seek the leave of the court may inappropriately limit a respondent’s access to the court system without it being established he or she has, for example, ‘demonstrably abused court processes in the past’.[275]

18.256 The Commissions note that a range of recommendations made in this Report—including in relation to definitions of family violence and to facilitate additional education, training and specialisation—may assist in ensuring that judicial officers better understand the nature and dynamics of family violence; and are better equipped to identify and deal with vexatious litigation in protection order proceedings.

[167] Gosnells Community Legal Centre Inc, Submission FV 56, 31 May 2010. See also Confidential, Submission FV 164, 25 June 2010; One in Three Campaign, Submission FV 35, 12 May 2010.

[168] Confidential, Submission FV 69, 2 June 2010.

[169] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010.

[170] Legal Aid NSW, Submission FV 219, 1 July 2010; Confidential, Submission FV 190, 25 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[171] See, eg, Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Women’s Legal Service Victoria, Submission FV 189, 25 June 2010; Confidential, Submission FV 81, 2 June 2010; Gosnells Community Legal Centre Inc, Submission FV 56, 31 May 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[172] Women’s Legal Services NSW, Submission FV 182, 25 June 2010. See also Women’s Legal Service Victoria, Submission FV 189, 25 June 2010.

[173] See, eg, Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010.

[174] Confidential, Submission FV 190, 25 June 2010.

[175] Family Court of Australia, Initiating Application (Family Law) <www.familycourt.gov.au/> at 9 February 2010, pt F.

[176] National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; Women’s Legal Service Victoria, Submission FV 189, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[177] Consultation Paper, Proposal 10–2.

[178] Ibid, Proposal 10–2.

[179] WESNET—The Women’s Services Network, Submission FV 217, 30 June 2010; National Abuse Free Contact Campaign, Submission FV 196, 26 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; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; Confidential, Submission FV 171, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; UnitingCare Children Young People and Families, Submission FV 151, 24 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; 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; Northern Territory Legal Aid Commission, Submission FV 122, 16 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 81, 2 June 2010; A Harland, Submission FV 80, 2 June 2010; Confidential, Submission FV 71, 1 June 2010; C Pragnell, Submission FV 70, 2 June 2010; M Condon, Submission FV 45, 18 May 2010; One in Three Campaign, Submission FV 35, 12 May 2010.

[180] Legal Aid NSW, Submission FV 219, 1 July 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

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

[182] Legal Aid NSW, Submission FV 219, 1 July 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 81, 2 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

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

[184] Berry Street Inc, Submission FV 163, 25 June 2010; Confidential, Submission FV 71, 1 June 2010.

[185] 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.

[186] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Confidential, Submission FV 183, 25 June 2010.

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

[188] Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010.

[189] Domestic Violence Legal Service, Consultation, Darwin, 26 May 2010.

[190] Rec 17–1.

[191] Including through the family violence bench book recommended in Ch 31.

[192] Generally, only a court may make a final protection order by consent. The exception is Domestic and Family Violence Act 2007 (NT) s 38, which allows a court or clerk to make a final order.

[193]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 78; Family Violence Protection Act 2008 (Vic) s 78; Restraining Orders Act 1997 (WA) s 43(2); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 23(3); Family Violence Act 2004 (Tas) s 22; Domestic Violence and Protection Orders Act 2008 (ACT) s 43; Domestic and Family Violence Act 2007 (NT) s 38. There are some variations across the jurisdictions. In particular, Restraining Orders Act 1997 (WA) s 43(3) specifies that ‘consent does not constitute an admission by the respondent of all or any of the matters alleged in the application’.

[194] In Victoria, this discretion is set out in legislation: Family Violence Protection Act 2008 (Vic) s 78(5). Additionally, even where the parties consent, the decision to make an order is a matter for judicial discretion. See for example, Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 78.

[195] Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth), [67].

[196] L Moloney and others, Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings: A Pre-reform Exploratory Study (2007), prepared for the Australian Institute of Family Studies, app E; see also R Hunter, Domestic Violence Law Reform and Women’s Experience in Court: The Implementation of Feminist Reforms in Civil Proceedings (2008), 98.

[197] However, in some jurisdictions even where the parties consent, before making an order the court may conduct a hearing in relation to the application/s. See for example, Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 78 and Family Violence Protection Act 2008 (Vic) s 78.

[198] Confidential, Submission FV 164, 25 June 2010.

[199] R Hunter, Domestic Violence Law Reform and Women’s Experience in Court: The Implementation of Feminist Reforms in Civil Proceedings (2008), 97.

[200] Ibid, 95.

[201] Consultation Paper, Proposal 10–1.

[202] National Legal Aid, Submission FV 232, 15 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; National Abuse Free Contact Campaign, Submission FV 196, 26 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; Queensland Law Society, Submission FV 178, 25 June 2010; Confidential, Submission FV 171, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; UnitingCare Children Young People and Families, Submission FV 151, 24 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; Northern Territory Legal Aid Commission, Submission FV 122, 16 June 2010; Confidential, Submission FV 105, 6 June 2010; A Harland, Submission FV 80, 2 June 2010; Confidential, Submission FV 71, 1 June 2010; C Pragnell, Submission FV 70, 2 June 2010; Confidential, Submission FV 69, 2 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010; M Condon, Submission FV 45, 18 May 2010.

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

[204] Women’s Legal Service Victoria, Submission FV 189, 25 June 2010.

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

[206] Confidential, Submission FV 164, 25 June 2010.

[207] National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; Confidential, Submission FV 184, 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.

[208] Local Court of NSW, Submission FV 101, 4 June 2010.

[209] Law Society of New South Wales, Submission FV 205, 30 June 2010.

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

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

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

[213] Ibid; National Legal Aid, Submission FV 232, 15 July 2010.

[214] See, eg, Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010, Local Court of NSW, Submission FV 101, 4 June 2010.

[215] National Legal Aid, Submission FV 232, 15 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

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

[217] Shoalcoast Community Legal Centre, Submission FV 141, 24 June 2010.

[218] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010.

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

[220] This is the case in most jurisdictions. See, eg, Family Violence Protection Act 2008 (Vic) ss 57, 96; Domestic and Family Violence Protection Act 1989 (Qld) ss 14A, 50; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 17; Restraining Orders Act 1997 (WA) s 8; Domestic Violence and Protection Orders Act 2008 (ACT) ss 84, 85; Domestic and Family Violence Act 2007 (NT) s 89.

[221] Local Court of NSW, Submission FV 101, 4 June 2010.

[222] A Brunacci, Submission FV 97, 4 June 2010.

[223] Local Court of NSW, Submission FV 101, 4 June 2010.

[224] A Brunacci, Submission FV 97, 4 June 2010.

[225] Confidential, Submission FV 164, 25 June 2010.

[226] Ibid.

[227] Rec 17–1.

[228] J Wangmann, ‘“She Said …” “He said …” : Cross Applications in NSW Apprehended Domestic Violence Order Proceedings’, Thesis, University of Sydney, 2009, 232–239; Victorian Law Reform Commission, Review of Family Violence Laws: Report (2006), [8.81].

[229] J Wangmann, ‘“She Said …” “He said …” : Cross Applications in NSW Apprehended Domestic Violence Order Proceedings’, Thesis, University of Sydney, 2009, 233.

[230] Victorian Law Reform Commission, Review of Family Violence Laws: Report (2006), [8.91].

[231] Ibid, Rec 88.

[232] Consultation Paper, Proposal 10–5.

[233] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; Inner City Legal Centre and The Safe Relationships Project, Submission FV 192, 25 June 2010; Women’s Legal Service Victoria, Submission FV 189, 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; Confidential, Submission FV 164, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; Justice for Children, Submission FV 148, 24 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; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 105, 6 June 2010; A Harland, Submission FV 80, 2 June 2010; Confidential, Submission FV 71, 1 June 2010; C Pragnell, Submission FV 70, 2 June 2010, Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010; M Condon, Submission FV 45, 18 May 2010.

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

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

[236] J Stubbs, Submission FV 186, 25 June 2010.

[237] Ibid.

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

[239] J Wangmann, Submission FV 170, 25 June 2010; J Wangmann, ‘“She Said …” “He said …” : Cross Applications in NSW Apprehended Domestic Violence Order Proceedings’, Thesis, University of Sydney, 2009, 231.

[240] J Wangmann, Submission FV 170, 25 June 2010.

[241] Confidential, Submission FV 190, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010.

[242] See, eg, Law Reform Committee—Parliament of Victoria, Inquiry into Vexatious Litigants (2008), 59; B Paxton, ‘Domestic Violence and Abuse of Process’ (2003) 17(1) Australian Family Lawyer 7, 7.

[243] Family violence legislation in NSW and SA allows a court to dismiss an application on the grounds that it is frivolous, vexatious, without substance or has no reasonable prospect of success: Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 53; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 21(3)(b). In other jurisdictions, rules of court generally allow courts to stay or dismiss vexatious applications: see, eg, Magistrates Court Civil Procedure Rules 2009 (Vic) rr 9A.01, 9A.02; Uniform Civil Procedure Rules 2005 (Qld) r 389A; Court Procedure Rules 2006 (ACT) r 1147.

[244] Family violence legislation in all jurisdictions except SA allows a court to make a costs order against a person who has made a vexatious application: Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 99(3); Family Violence Protection Act 2008 (Vic) s 154; Domestic and Family Violence Protection Act 1989 (Qld) s 61; Restraining Orders Act 1997 (WA) s 69; Family Violence Act 2004 (Tas) s 34; Domestic Violence and Protection Orders Act 2008 (ACT) s 117; Domestic and Family Violence Act 2007 (NT) s 91. In SA, the relevant provisions are contained in the Summary Procedure Act 1921 (SA) s 189.

[245] See, eg, Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 53; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 21(3)(b).

[246] See, eg, Magistrates Court Civil Procedure Rules 2009 (Vic) rr 9A.01, 9A.02; Uniform Civil Procedure Rules 2005 (Qld) r 389A; Court Procedure Rules 2006 (ACT) r 1147.

[247]Family Violence Protection Act 2008 (Vic) s 189.

[248] Ibid s 193(1).

[249] Ibid s 195.

[250]Uniform Civil Procedure Rules 2005 (Qld) s 389A; Vexatious Proceedings Restriction Act 2002 (WA) s 4.

[251]Vexatious Proceedings Act 2008 (NSW) s 8 (this Act also confers power on the Land and Environment Court and Industrial Court); Supreme Court Civil Procedure Act 1932 (Tas) s 194G; Supreme Court Act 1933 (ACT) s 67A; Vexatious Proceedings Act 2006 (NT) s 7.

[252] See, eg, Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 73(3); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 26(4)(b); Domestic Violence and Protection Orders Act 2008 (ACT) s 59(2)(a)(i) (interim orders only).

[253] Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 26(4)(a).

[254]Family Violence Protection Act 2008 (Vic) s 109; Restraining Orders Act 1997 (WA) s 46; Domestic and Family Violence Act 2007 (NT) s 48(3).

[255]Victorian Law Reform Commission, Review of Family Violence Laws: Report (2006), [10.42].

[256]Family Violence Act 2004 (Tas) s 20(2). Provisions relating to police-issued protection orders are contained in s 14(9)–(10).

[257] Consultation Paper, Question 10–9.

[258] Ibid, Proposal 10–6.

[259] A Cannon, Submission FV 137, 23 June 2010; Local Court of NSW, Submission FV 101, 4 June 2010.

[260] A Cannon, Submission FV 137, 23 June 2010.

[261] J Wangmann, Submission FV 170, 25 June 2010.

[262] Ibid. Wangmann noted that there are many reasons why a victim of family violence might withdraw an application—including accepting an undertaking to the court, a desire to continue the relationship, or because of threats made by the respondent. See also Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[263] J Stubbs, Submission FV 186, 25 June 2010.

[264] Legal Aid NSW, Submission FV 219, 1 July 2010; National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 164, 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.

[265] Peninsula Community Legal Centre, Submission FV 174, 25 June 2010.

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

[267] Legal Aid NSW, Submission FV 219, 1 July 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Confidential, Submission FV 164, 25 June 2010.

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

[269] P Maloney, Submission FV 230, 31 May 2010; Shared Parenting Council of Australia, Submission FV 206, 28 June 2010; Non-Custodial Parents Party (Equal Parenting), Submission FV 55, 1 June 2010; E McGuire, Submission FV 53, 28 May 2010. See also P Parkinson, J Cashmore and J Single, Post-Separation Conflict and The Use of Family Violence Orders (2009).

[270] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; National Abuse Free Contact Campaign, Submission FV 196, 26 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; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 164, 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; 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; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 105, 6 June 2010; C Pragnell, Submission FV 70, 2 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

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

[272] Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010.

[273] Queensland Law Society, Submission FV 178, 25 June 2010. The Queensland Law Society considered that making a costs order against a person who makes an improper application may be a more appropriate measure to deter vexatious litigation.

[274] J Stubbs, Submission FV 186, 25 June 2010; Northern Territory Legal Aid Commission, Submission FV 122, 16 June 2010.

[275] This is the stated rationale for vexatious litigant provisions in Victorian family violence legislation: Explanatory Memorandum, Family Violence Protection Bill 2008 (Vic).