Protection order conditions and the criminal law

11.123 Conditions in protection orders may overlap with:

  • general prohibitions or requirements imposed by the criminal law;
  • bail conditions;[168]
  • pre-sentencing orders; and
  • orders made on sentencing—including non-contact and place restriction orders.

11.124 In addition, protection orders can impose conditions that restrict behaviour not otherwise prohibited by the criminal law, as well as conditions—such as orders excluding a person from his or her home—which are not typically sentencing options.[169]

Types of conditions

11.125 Before considering issues of overlap between conditions in protection orders obtained under family violence legislation and the criminal law, and areas where conditions may operate independently of the criminal law, it is necessary to consider the types of conditions available under protection orders.

11.126 The Australian Government Solicitor (AGS) has expressed the view that family violence legislation does not appear to be substantially different across jurisdictions in respect of crucial matters such as:

the types of orders that may be made in the domestic violence context and the kinds of prohibitions, restraints and conditions that an order may impose on the person against whom it is made.[170]

11.127 The types of conditions that are authorised by family violence legislation to be imposed typically include any that the court considers to: protect the victim and any child from family violence,[171] encourage the person to accept responsibility for the violence committed against the victim, or change his or her behaviour.[172]

11.128 Conditions can also prohibit (or restrict) the person against whom the protection order is made from:

  • committing family violence against the victim;[173]
  • harassing, threatening or intimidating the victim;[174]
  • verbally abusing or assaulting the victim;[175]
  • entering the victim’s residence, workplace or any other specified premises—including where that person has a legal or equitable interest in the property;[176]
  • being anywhere within a specified distance of the victim or a specified place;[177]
  • approaching the victim or any specified premises—including within 12 hours of consuming intoxicating liquor or illicit drugs;[178]
  • telephoning or otherwise contacting the victim—including by email or by text message, unless in the company of a police officer or specified person;[179] and including attempting to contact the victim at a refuge either directly or through someone else;[180]
  • interfering with or damaging the victim’s property;[181]
  • stalking the victim;[182]
  • locating or attempting to locate the victim;[183]
  • causing another person to engage in behaviour prohibited by the protection order;[184]
  • taking possession of specified personal property reasonably needed by the victim;[185]
  • preventing the victim from obtaining and using personal property reasonably needed by the victim;[186] and
  • possessing firearms, prohibited weapons,[187] or a firearms licence.[188]

11.129 In NSW and Queensland, protection orders include mandatory conditions. In NSW every protection order is taken to include conditions which prohibit the person from: assaulting, molesting, harassing, threatening, stalking and engaging in any intimidating conduct towards the victim or anyone with whom the victim has a domestic relationship.[189] In Queensland, every protection order is taken to include a condition that the person is to be of good behaviour and not commit family violence.[190]

11.130 In addition to prohibiting or restricting conduct, conditions attached to a protection order can require the person to undertake certain actions, such as: vacate premises—whether or not the person has a legal or equitable interest in the premises;[191] surrender firearms and other weapons;[192] return specified personal property required by the victim;[193] attend an assessment to determine an appropriate form of intervention program and eligibility for such a program;[194] or attend a rehabilitation program.[195] Conditions can also specify the circumstances in which a person against whom a protection order is made may be on particular premises or approach or contact a particular person.[196]

11.131 In SA only, a court making a protection order may make a problem gambling order providing that the person be subject to a problem gambling family protection order under the Problem Gambling Family Protection Orders Act 2004 (SA) imposing specified requirements or orders of a kind that could be imposed by the Independent Gambling Authority under that Act.[197] Such orders include requiring the person to attend counselling or rehabilitation; prohibiting the person from taking part in gambling activities; and prohibiting the person from contacting or intimidating a family member for the purpose of demanding or requesting money for gambling activities.[198] The Commissions heard in one consultation with magistrates in Adelaide that problem gambling orders are not being imposed as part of the conditions of protection orders.

11.132 Directions not to breach the criminal law may be attached as conditions to a protection order. For example, conditions which provide that a person is not to threaten, assault or stalk another person, or damage another person’s property, essentially articulate what is, in any event, conduct typically prohibited by the criminal law. A condition to be of good behaviour is also essentially a condition to abide by the law. Other conditions, however, prohibit conduct which, but for the prohibition in the protection order, would not infringe the law. For example, persons are usually free to contact, communicate with, approach and locate family members, and free to enter and live in their own residence—conduct which can be proscribed by a protection order that includes an exclusion order.[199]

Application of conditions in practice

11.133 The above summary indicates the wide range of conditions potentially available to judicial officers to impose in the making of protection orders under family violence legislation. However, Professor Rosemary Hunter’s study of the handling of family violence protection order proceedings in magistrates’ courts in Victoria found that the median hearing time for protection order applications, other than contested final orders, was three minutes.[200] She observed that the speed with which protection order applications were dealt with resulted in judicial officers not giving particularised attention to the conditions attached to a protection order. She concluded that conditions were not tailored to the particular allegations of each case.[201]

11.134 The application forms for protection orders in most jurisdictions set out the conditions that may be attached to the making of a protection order, with an option for applicants to tick the conditions which they seek.[202] However, the application form for a protection order in WA does not set out the conditions which may be imposed.[203]

11.135 The application forms for NSW and Queensland specify the mandatory conditions which attach to a protection order in those jurisdictions. The application form for a protection order in Victoria includes a note informing the applicant that if there is something that he or she wants the person who has used violence to do—or not do—which is not covered in the list, the applicant should discuss this with the Court Registrar.[204]

Submissions and consultations

Tailored conditions

11.136 In the Consultation Paper, the Commissions asked whether, in practice, the conditions that judicial officers attach to protection orders under state and territory family violence legislation were sufficiently tailored to the circumstances of particular cases.[205]

11.137 Stakeholder responses to this question were divided. Some stakeholders stated that protection orders are generally adequately tailored,[206] but noted that this was dependent largely on: whether the parties had legal representation; the quality of legal representation;[207] whether the victim was able to obtain assistance from family violence support services or court support services;[208] and, in some cases, the varying practices of judicial officers.[209] Some submitted that judicial officers tailor orders according to what is presented to them by the victim, prosecution, or offender.[210]

11.138 For example, it was submitted that:

  • in the ACT, the precedent list of conditions and exceptions used by judicial officers is ‘sufficiently thorough to enable appropriate tailoring’;[211]
  • in Tasmania, the standard conditions are broad enough to apply in most situations;[212]
  • in WA, some judicial officers give great consideration to appropriate terms, while others ‘adopt a more standard approach’, and problems have arisen where justices of peace, who are not legally trained, hear interim protection order applications;[213]
  • in Queensland, magistrates are ‘attuned to ensuring that a protection order provides for safety and proper conditions are tailored to the circumstances of each case’;[214] and
  • in Victoria, if one or both parties are represented, then the conditions to be included are negotiated, and judicial officers will give active consideration to whether particular conditions should be included.[215]

11.139 However, many stakeholders expressed concern that conditions were not adequately tailored to the circumstances of particular cases,[216] with time constraints being cited as a common reason.[217] For example, Professor Julie Stubbs submitted that research suggests that:

applications for orders are often poorly drafted and busy courts often have little time to establish the particular needs of the parties nor to tailor the orders to those needs.[218]

11.140 In a confidential submission, a legal service provider in the NT said that ‘little attention’ is given to the conditions, ‘especially when the order is not contested’—and it reported that it had certainly never seen a magistrate take the initiative to explore orders outside the usual list.[219] National Legal Aid also noted that inappropriate protection orders have been made for persons living in remote Indigenous communities, for example ‘the order might ignore the fact that both parties will have to use the only local grocery shop’.[220]

11.141 The Aboriginal Family Violence Prevention and Legal Service Victoria submitted that tailoring conditions is more difficult when police, rather than lawyers, are involved:

The standardised form results in laziness and inhibits further enquiry as to whether particular conditions are appropriate. ... Generally it takes some time to talk through a victim’s particular situation ... Police are generally time pressured and not best placed to do this. Understanding of the broader legal situation with respect to proceedings on foot or pending or other orders made, is also required in tailoring orders, and again police are not best placed to deal with this.[221]

11.142 Several stakeholders submitted that tailoring conditions is ‘imperative’.[222] Properly tailored conditions ‘ensure that the victim does not need to return unnecessarily to court to vary the order and therefore leads to efficiency across the justice system’.[223] Similarly, a legal service from the NT submitted that, given that not all victims have access to legal representation—or to legal representation of appropriate experience and skill—‘it would be very helpful if the magistrates could consider specialised orders on their behalf’.[224]

11.143 The Department of Premier and Cabinet (Tas) stated that judicial officers should not draft conditions which address only the violence that has already been committed because this ‘is likely to leave victims without sufficient protection’.

With family violence behaviours, just because somebody used the telephone to carry out the harassment the first time does not mean that they will not approach in person the next time.[225]

11.144 It also emphasised the utility of courts being able to impose orders which require respondents to refrain from doing acts which would constitute a breach of the law because it ‘actually does help them to realise that these behaviours are going to lead to consequences’.[226]

Trying to locate the victim

11.145 In the Consultation Paper, the Commissions proposed that state and territory family violence legislation should provide expressly that one of the conditions that may be imposed by a court making a protection order is to prohibit the person against whom the order is made from locating or attempting to locate the victim of family violence.[227]

11.146 Most stakeholders supported this proposal.[228] In a joint submission, Domestic Violence Victoria and others agreed that the condition was important for those trying to sever ties with persons who have used family violence.[229] One legal service provider submitted that this would give police ‘more specific scope to arrest a defendant should they breach this condition’.[230]

11.147 Some stakeholders expressed qualified support for the proposal. An advocacy organisation agreed with the proposal, provided that ‘there is a priority for minimal disruption to the protected person and any children involved that assumes, where safe and possible, they remain in the home, and the perpetrator is removed’.[231] The Aboriginal Family Violence Prevention and Legal Service Victoria supported the proposal, ‘subject to [the application] of Family Law Act location provisions’.[232]

11.148 National Legal Aid stressed that care would need to be taken to ensure that such orders were appropriate for individual cases, and that this could be the subject of further training and education.[233] Legal Aid NSW stated that such conditions would need to be qualified to allow parties to be contacted in order to engage in family dispute resolution in appropriate circumstances.[234]

11.149 Other stakeholders expressed concern that such a condition could pose ‘practical difficulties’;[235] would be difficult to enforce;[236] and could be open to abuse by a victim.[237] For example, the Department of Premier and Cabinet (Tas) submitted that if a condition were to set out in detail what a respondent to a protection order must not do—such as check the electoral roll or ask friends where the victim is—this may be counter-productive in actually suggesting ways to locate the victim, potentially endangering him or her.[238]

11.150 Legal Aid NSW and the Law Society of NSW both expressed the view that the current prohibition on contacting a victim should be sufficient.[239] The Victorian Government stated that it would consider this proposal, and noted that Victorian family violence legislation permits the court to impose any conditions that appear to the court to be necessary or desirable in the circumstances.[240]

11.151 Other stakeholders opposed the proposal.[241] The South Australian Government said it was difficult to see how the proposal would add anything;[242] and another stakeholder noted that trying to locate someone does not necessarily constitute intention to harm that person.[243]

Application forms

11.152 In the Consultation Paper, the Commissions proposed that application forms for protection orders in each state and territory should clearly set out the full range of conditions that a court may attach to a protection order. The forms should be drafted to enable applicants to indicate the types of conditions that they would like imposed. In particular, the Commissions proposed, the application forms in WA should be amended in this regard.[244]

11.153 This proposal was widely supported,[245] with one stakeholder noting, for example, that applicants for protection orders need guidance as to the available and appropriate conditions.[246]

11.154 However, a strong theme that emerged in several submissions was that, the list of conditions should be an aid but not exhaustive, allowing judicial officers discretion to impose tailored conditions where it was necessary and desirable.[247] One stakeholder, while supporting the proposal, submitted that more than a ‘check-box’ approach is necessary, and that there is ‘also a need for on-site duty lawyers who can advise applicants of all their options’.[248]

11.155 Another stakeholder expressed the view that if a form were to include a complete list of possible conditions, it could become ‘unwieldy and confusing’ and that it may be more helpful for the court registry or website to have an expanded list of sample orders for applicants to consider in drafting their applications for protection orders.[249]

11.156 One stakeholder was concerned that ‘emotionally charged revenge seeking’ applicants might request all the conditions set out in an application form.[250]

11.157 A number of stakeholders also commented on the efficacy of the application forms being used in their own jurisdictions. For example, the Commissions heard that:

  • the checklist of special conditions set out in the application forms in Queensland ‘appears to work well’;[251]
  • the application forms in NSW are clear and do not need to be changed;[252] and
  • the application forms in the NT are ‘poor’, with stakeholder support for better forms and a standard affidavit.[253]

Commissions’ views

11.158 The Commissions consider that, in making protection orders, it is particularly important that judicial officers are able to impose conditions which proscribe conduct which is otherwise not criminal. All citizens are, in any event, under an obligation not to breach the criminal law. However, there is benefit in attaching conditions to protection orders that are, in essence, directions not to breach the criminal law. A breach of a protection order is a criminal offence and, as discussed in Chapter 12, it may be easier to prove a breach than the underlying offence to the requisite degree of proof. In addition, articulating conditions which reinforce duties to obey the criminal law also emphasises to a respondent that his or her offending behaviour will attract certain consequences.

11.159 In considering the conditions which courts can impose to proscribe conduct which is otherwise not criminal, the Commissions consider that a condition prohibiting a respondent to a protection order from locating or attempting to locate the victim—such as that contained in the family violence legislation of Queensland—is of particular importance in the context of victims fleeing family violence and attempting to sever ties with those who have used violence against them. All state and territory family violence legislation should include a condition to this effect—and such a condition should be specified on all state and territory application forms for protection orders, thereby allowing victims the option to ask the court to consider imposing such a condition.

11.160 The imposition of such a condition will not be appropriate in all cases. Importantly, judicial officers will need to be trained as to the application of such a condition, ensuring that it is only applied in appropriate circumstances, and qualified, where necessary to allow a respondent to attempt to locate a victim only for specified legitimate reasons such as those arising from family law dispute resolution processes or family law proceedings. The use of specialised family violence courts with specialised judicial officers—as discussed in Chapter 32—will assist in ensuring the appropriate use of this condition.

11.161 Training and education of judicial officers, and the use of specialised family violence judicial officers are also key to ensuring that, to the greatest extent possible, tailored conditions are imposed in particular matters.[254] For example, it is imperative that judicial officers in remote communities avoid unconditional ‘no contact’ conditions unless absolutely necessary to minimise the potential for unintentional breaches. It is also critical that protection order applications are, in fact, heard by judicial officers and not by justices of the peace who are not legally trained—as the Commissions have heard is the practice in WA.

11.162 As a practical matter, it is also important that applications for protection orders clearly set out the types of conditions that a court may attach to a protection order, allowing for the possibility of tailored conditions. The forms should be drafted to enable victims to indicate the types of conditions that they seek. For example, the application for a protection order in WA should be amended to set out the types of conditions that a court may impose in making a protection order. This information will serve as a guide to applicants, and should be augmented by the provision of victim support services, including specialist legal representation—as recommended in Chapter 32.

11.163 Below the Commissions express views in relation to exclusion orders, and rehabilitation and counselling conditions.

Recommendation 11–6 State and territory family violence legislation should provide expressly that one of the conditions that may be imposed by a court making a protection order is to prohibit the person against whom the order is made from locating or attempting to locate the victim of family violence.

Recommendation 11–7 Application forms for protection orders in each state and territory should clearly set out the types of conditions that a court may attach to a protection order, allowing for the possibility of tailored conditions. The forms should be drafted to enable applicants to indicate the types of conditions that they seek to be imposed.

Exclusion orders

11.164 Family violence legislation makes provision for protection order conditions which allow a court to prohibit a person who has used violence from entering and remaining in a residence shared with the victim, including, in some cases, the power to terminate an existing tenancy agreement and replace it with one for the benefit of the victim. In other words, a court can impose a condition requiring the person against whom the protection order is made to vacate premises, notwithstanding any ownership rights in relation to such premises.[255]

11.165 As stated in Chapter 7, courts have been reluctant to make exclusion orders as they have the potential to cause great hardship—ultimately homelessness—for the person against whom it is made.[256] The making of an exclusion order may be relevant to the sentencing for a family-violence related offence of the person against whom the order was made.

11.166 As noted by the AGS, there is significant variation in:

  • the factors that a court has to take into account in making exclusion orders;
  • whether the safety and accommodation needs of the victim are prioritised;
  • whether there is a statutory presumption in favour of exclusion; and
  • the impact of an exclusion order on a residential tenancy.[257]

Some of these differences are considered below.

Factors a court has to take into account in making an exclusion order

11.167 A Victorian court that makes a protection order is required to consider whether to make an exclusion order.[258] In some jurisdictions, including Victoria, Queensland, and NSW, courts are directed to consider specific requirements before making an exclusion order and these requirements are in addition to those to be considered in making a protection order. These requirements include:

  • the desirability of minimising disruption to the victim and any child living with the victim and the importance of maintaining social networks and support;[259]
  • the desirability of continuity and stability in the care of any child living with the victim;[260]
  • the desirability of allowing any childcare arrangements, education, training or employment of the victim, or any child living with the victim, to continue without interruption or disturbance;[261]
  • the effects and consequences on the safety and protection of the victim and any children living or ordinarily living at the residence if an exclusion order is not made;[262] and
  • whether there is a need for a condition allowing the person against whom the exclusion order is made to remain at or return to the premises to recover personal property.[263]

11.168 In other jurisdictions the factors that a court is bound to consider in making a protection order are the same, regardless of whether the protection order includes an exclusion order.[264] For example, in making a protection order, South Australian courts must consider the desirability of: minimising disruptions to victims and any children living with victims; maintaining social networks and support for victims; ensuring continuity and stability in the care of children living with victims; and allowing child-care arrangements, education, training and employment of victims or any children living with victims to continue uninterrupted.[265]

11.169 As stated above, some jurisdictions—such as Victoria and NSW—require courts to have specific regard to the needs of the victim and any child of the victim in deciding whether to make an exclusion order.[266] In Victoria, a court is only required to consider the accommodation needs of a person against whom an exclusion order is made if that person is a child.[267] Moreover, there are additional considerations where the person excluded is an Indigenous child. These considerations are the priority for that child to live with his or her extended Indigenous family and relatives, and the need for the child to keep the child’s culture and identity through contact with the child’s community.[268]

11.170 Other jurisdictions take a similar approach in deciding whether to make a protection order. For example, in the NT a court is directed expressly to consider the accommodation needs of the victim in making a protection order, but not those of the person against whom the order is made.[269]

11.171 Other jurisdictions take a less victim-focused approach in the making of protection orders—including exclusion orders—by either allowing or directing the court to take into account the needs or interests of the person against whom the order is to be made. For example, the Queensland family violence legislation provides that the court may impose any condition it considers necessary or desirable in the interests of the victim, any named person, and the person against whom the protection order is made.[270]

11.172 The ACT family violence legislation requires that the court must, in making a final protection order, consider the accommodation needs of the victim and any relevant children, as well as any hardship that may be caused to the person against whom the order is made.[271] Similarly, the Western Australian legislation requires a court making a protection order to consider the accommodation needs of the person against whom the order is made, as well as the victim, and any hardship that may be caused to the person against whom the order is made.[272]

11.173 If police in Victoria issue a family violence safety notice that includes an exclusion order, they are required to consider the accommodation needs of the person against whom the order is made and any dependent children of that person. The police are required to take reasonable steps to secure for such persons access to temporary accommodation.[273]

Presumption in favour of exclusion

11.174 Only the NT family violence legislation contains an express presumption that where a victim, a person who has used family violence against the victim, and a child reside together, the protection of the victim and the child are best achieved by their living in the home. The presumption does not act to prevent a protection order including a condition allowing the person against whom the protection order is made to visit the child at the home.[274] Such a presumption acts to implement a central objective of the legislation referred to in the Second Reading Speech of the Domestic and Family Violence Bill 2007 (NT), namely ‘to ensure minimal disruption to the lives of families affected by violence’.[275]

11.175 Significantly, the presumption only operates where there is a child involved. It has no application in the case of family violence between partners living in the same residence without a child.

Submissions and consultations

Duty to consider making of exclusion order

11.176 In the Consultation Paper, the Commissions proposed that state and territory family violence legislation should require judicial officers considering the making of protection orders to consider whether or not to make an exclusion order—that is, an order excluding a person against whom a protection order is made from premises shared with the victim, even if the person has a legal or equitable interest in such premises.[276]

11.177 This proposal received overwhelming support,[277] on the basis, for example, that:

  • the safety of victims is of paramount importance;[278]
  • it might mean that fewer women and children become homeless as a result of family violence;[279]
  • it may help ‘address the particular vulnerabilities of, and additional barriers to leaving family violence for, people with disability’;[280] and
  • it is onerous and difficult for victims to pursue an exclusion order—especially if they fear it will ‘open up the flood gates’ to further abuse.[281] But if the Courts were required to consider making the order, the onus will be removed from the victim and it will be less likely that the victim will be blamed.[282]

11.178 A number of stakeholders emphasised that this issue should also be addressed by education and training as it is ‘a core responsibility’ of the police prosecutor or solicitor representing the victim to raise this issue, and the responsibility of a judicial officer to give it consideration.[283]

11.179 The Victorian Government supported the proposal, suggesting that Victoria’s family violence legislation should be a model, and submitted that police and registrars:

need to advise victims in the first instance about exclusion conditions ... This is particularly important due to the number of victims who may go direct to court without having had any support from a family violence agency.[284]

11.180 One stakeholder expressed qualified support for the proposal on the basis that

care is taken to ensure this does not hold up the process of awarding interim protection orders, or that by making this explicit we see more respondents objecting to the interim protection order.[285]

11.181 Other stakeholders expressed concerns about the proposal, including:

  • ‘it will not be appropriate in all cases and may come to be a disincentive for some victims to seek legal assistance if it is to be raised in all circumstances’;[286]
  • evicting an ‘emotionally charged’ person, who might be suffering from a mental disorder, will aggravate matters and may cause more violence.[287]

11.182 A partner violence counsellor submitted that judicial officers should not consider exclusion automatically, but only at the request of the police or victim, and they should provide sufficient grounds for the exclusion.[288]

Relevant factors

11.183 In the Consultation Paper, the Commissions proposed that state and territory family violence legislation should specify the factors that a court is to consider in making an exclusion order. The Commissions also proposed that judicial officers should be required to consider the effect that making or declining to make an exclusion order will have on the accommodation needs of the parties to the proceedings and on any children.[289]

11.184 A significant number of stakeholders supported this proposal.[290] A legal service provider said this was particularly relevant in the NT,

where there is significant housing pressure and, not only is it hard to find affordable accommodation, it can be hard, at times, to find accommodation at all.[291]

11.185 Many stakeholders expressly supported consideration being given to the needs of the victim and any children in making an exclusion order,[292] with one noting that it may decrease the number of victims and children who are faced with homelessness as a result of family violence.[293] However, several submissions expressed a concern that the accommodation needs of the respondent be treated as a secondary consideration to the need to ensure the safety of a victim and any children.[294]

11.186 For example, the Disability Services Commission (WA) agreed that highlighting factors for consideration is important, and submitted that the factors a court should consider are complex and may, in some cases, be conflicting.[295] It submitted that some factors should be ‘higher order considerations’, such as minimal disruption to the lives of victims. The accommodation needs of the parties, it submitted, could be a secondary consideration.

11.187 However, the Victorian Government opposed the court having to consider the accommodation needs of the respondent at all, noting that, in Victoria, courts are not required to do so unless the subject of the order is a child. It submitted that this ‘position was arrived at after extensive consultation with stakeholders and it is considered an appropriate balance’ and that emergency accommodation options are provided as part of Victoria’s integrated system.[296] Some stakeholders suggested that the Victorian legislation should provide a model.[297]

11.188 Another stakeholder stated that it assumed each state and territory has emergency accommodation services to assist men who are made homeless following the making of an exclusion order:

Given this, we can see no reason why courts or police should hesitate to apply an exclusion order to a male user of family violence on the basis that the man would need to use emergency accommodation.[298]

11.189 Another stakeholder suggested that the specified factors should not be considered exhaustive, but rather as ‘an indication of the kinds of factors to be considered, so that individual circumstances can be taken into account’.[299]

11.190 The Disability Services Commission also submitted that a further secondary consideration that should be considered by the court is the impact of a person’s disability,

including that of victims, perpetrators and children. An exclusion order may result in undue hardship for a perpetrator with disability. Similarly, not making an exclusion order may result in undue hardship for a victim with disability or any children with disability.[300]

11.191 The Disability Services Commission (WA) submitted that courts may need to consider, among other things:

  • any aids, equipment, care and support necessary for daily life;
  • whether alternative support and accessible accommodation are available;
  • the person’s ability to contact and access the support and accommodation; and
  • the time required to organise this support and accommodation.[301]
Inclination of judicial officers to make exclusion orders

11.192 Although it was not a question raised in the Consultation Paper, some stakeholders commented on the inclination of judicial officers to make exclusion orders. For example, the Queensland Law Society submitted, that ‘ouster’ orders are ‘less cumbersome, quicker and cheaper to obtain than sole use orders under the Family Law Act’—but at times there are ‘remarkably different approaches from different magistrates’:

Anecdotal evidence is that some magistrates are inclined to make these orders quite readily, including on an ex parte basis, whereas other magistrates regularly decline to make them, particularly if they are concerned that they are being used as an inappropriate stalking horse for property settlement proceedings.[302]

11.193 Another stakeholder submitted that ouster orders are difficult to obtain in Queensland, particularly where the respondent has a legal connection to the premises—and even where the victim is named jointly on the title or lease.[303] It was also suggested that respondents are also less likely to be evicted if they say they have no other accommodation.[304]

11.194 The NSW Women’s Refuge Movement Working Party Inc said that experiences reported by its member refuges indicate that ‘many judicial officers are often not inclined to make exclusion orders’ and one refuge recently said ‘one magistrate didn’t even know what an exclusion order was’.[305] Legislative direction and education of judicial officers would therefore also be useful.[306]

Police role in securing accommodation for excluded person

11.195 In the Consultation Paper, the Commissions asked, where state or territory family violence legislation empowers police to make orders excluding persons who have used family violence from their homes, whether they should be required to take reasonable steps to secure temporary accommodation for the excluded persons.[307]

11.196 Stakeholder views on this issue were divided. Some stakeholders expressed concerns about police making exclusions orders at all,[308] or making them in situations which were not urgent or in cases where it was not possible for a court to hear the matter.[309]

11.197 Many stakeholders submitted that where police have the power to exclude persons, they should be required to take reasonable steps to secure temporary accommodation,[310] including on the basis that:

  • Exclusion orders are more likely to work when excluded persons are helped to find alternative accommodation.[311] Without accommodation, the respondent will often breach the orders[312]—being not only more likely to return to the family home, but doing so at the invitation of a concerned and sympathetic victim.[313]
  • It would increase the safety—and sense of safety—of victims, and reduce the risk of further or escalated violence,[314] especially given that excluded men ‘often need specialised support’ finding themselves ‘in particularly volatile states of mind soon after the intervention’.[315]
  • It is necessary to ensure that there are systems in place to address any homelessness that may ensue as a result of an exclusion order.[316]

11.198 The Aboriginal Family Violence Prevention and Legal Service Victoria submitted that although police are already subject to this obligation under the Victorian legislation, police ‘lack knowledge of the procedure’.[317]

11.199 Some stakeholders stated that, if the government is serious about reducing family violence, it needs to address the availability of suitable accommodation as a priority.[318] National Legal Aid, for example, noted that in Tasmania ‘a fund for perpetrator housing was created, but has not been used to anywhere near the extent that was anticipated’.[319] Berry Street Inc submitted that there are ‘under-utilised’ but ‘very useful’ resources for excluded men in Victoria to be provided with a few nights accommodation with support and police are aware of this resource.[320]

11.200 Other stakeholders expressed the view that police should not have to take reasonable steps to secure accommodation,[321] including because this is an onerous requirement;[322] not core police work;[323] could dissuade police from applying for an exclusion order;[324] and would not be of any practical benefit due to the lack of available accommodation.[325] However, some favoured that the police be trained to take some form of action, such as:

  • enquire of the respondent about the availability of alternative accommodation;[326] and/or
  • refer the respondent to a housing or homeless service, support service such as the Salvation Army or other assistance.[327]
Providing reasons for not excluding

11.201 In the Consultation Paper, the Commissions proposed that state and territory family violence legislation should require a court to give reasons for declining to make an exclusion order—that is, an order excluding the person against whom a protection order is made from premises in which he or she has a legal or equitable interest—where such order has been sought.[328]

11.202 The great majority of stakeholders supported this proposal,[329] with one legal service provider opposing it without providing further comment.[330] Reasons for support included that:

  • reasons are essential in case there are grounds to appeal;[331]
  • it enhanced ‘consideration of the safety of victims’ and of the ‘social context of family violence embedded in the legislation via principles and definitions’;[332]
  • victims have a right to have the court outcome explained to them;[333]
  • courts should be held to account when they choose not to make an exclusion order;[334] and
  • magistrates in making or refusing to make an order in any case should provide reasons.[335]

11.203 Stubbs agreed that reasons should be given in those cases where an exclusion order has been sought.[336] Women’s Legal Services Australia also submitted that police should have to give their reasons, if they have the power to make such an order.[337]

11.204 Legal Aid NSW stated that it was its experience that courts ‘do not often give considered reasons in these situations’.[338]

Northern Territory presumption

11.205 In the NT family violence legislation, there is a presumption that where a victim, a person who uses family violence, and child reside together, the protection of the victim and child is best achieved by their remaining in the home. In the Consultation Paper, the Commissions asked how this presumption is working in practice. In particular, the Commissions asked if it has resulted in the making of more exclusion orders.[339]

11.206 Stakeholders addressed the application of the presumption both by police and the courts. National Legal Aid submitted that this presumption is regularly used by the police when they issue protection orders in urgent circumstances.[340] However, one legal service provider said it was ‘still rare’ to have an exclusion order granted:

Police do not utilise it in a remote setting and instead still tend to favour the emergency evacuation of a victim regardless of whether she has children.[341]

11.207 National Legal Aid stated that courts have made exclusion orders where victims have requested them, ‘because of the existence of the presumption’. However, it said that magistrates ‘take these applications seriously’, do not grant them ‘as a matter of course’, and an initial fear that the presumption would be abused by people seeking to gain control of property to circumvent the family law jurisdiction had not been realised.[342]

11.208 Stakeholders expressed mixed views about the practical effect of the presumption on victims. It was recognised that, in some circumstances, the presumption is benefiting victims, while in others it is not—principally because many women do not want to stay home because they do not feel safe there or are advised not to stay home because of the risk of the respondent returning.[343]

11.209 A NT legal service provider strongly supported the provision, which it said:

prioritises victims’ safety, permits children to continue an established routine, encourages an alleged offender to accept responsibility for [his or her] conduct, and responds to the existing reality of nil/very limited bed space at women’s shelters which results in victims being unhoused and in very unsafe circumstances.[344]

Whether there should be a presumption that victims remain in the home

11.210 In the Consultation Paper, the Commissions asked whether state and territory family violence legislation should include an express presumption that the protection of victims is best served by their remaining in the home in circumstances where they share a residence with the persons who have used violence against them.[345]

11.211 Many stakeholders submitted that there should be such an express presumption.[346] However, several of these stakeholders also expressed the view that judicial officers must have sufficient discretion to assess individual circumstances and that victims should decide whether they want to remain in the home, acknowledging that it may not always be the safest option for a victim to remain in the home—or the fairest option to exclude the respondent.[347]

11.212 Reasons given in favour of such a presumption included that:

  • it ‘favours the alleged victim and that is fair’;[348]
  • it ‘acts as a prompt to judicial officers to seriously consider an exclusion order’;[3
  • 49]it may assist judicial officers to recognise that it is often easier, less disruptive and less expensive for a single person to find accommodation than for a mother and children, particularly considering that ‘often victims of family violence are forced to flee the family home with meagre belongings’;[350] and
  • a person who uses family violence forfeits the right to stay in his or her home[351]

11.213 However, many stakeholders expressed concerns about the practical application of such a presumption. The impracticality of applying such a presumption in particular Indigenous settings was raised as a particular issue. One legal service provider noted that often an Indigenous victim may reside in the home of the aggressor’s family with members of that family, such as a mother-in-law. ‘Such a presumption in these circumstances is invalid’.[352]

11.214 In addition, stakeholders noted the potential for the presumption to result in ‘unintended consequences’.[353] For example, both National Legal Aid and the Victorian Government expressed the view that the presumption could be problematic, operating against genuine victims where an aggressor ‘seeks to get in first’ by applying for an order or making a cross-application to manipulate the system to enable him or herself to remain in the family home.[354]

11.215 Several stakeholders opposed the proposal on the basis that it could compromise the safety of victims and children.[355] In particular, stakeholders stressed that victims will not always be safe in the home—and that the safest option might sometimes be for the victim to leave, particularly given that the aggressor knows where she or he lives, knows the premises well, and might still have a key.[356]

11.216 For example, the No to Violence Male Prevention Association stated that excluding a man from his home

is no guarantee that he won’t attempt to return to the family home, and in some situations the risk of such might be associated with significant safety risks for affected family members.[357]

11.217 Some stakeholders noted that for victims the idea of remaining in the home might be ‘daunting and scary’[358] and remind the victim of the trauma that occurred in the house[359]—and this emphasised the importance of giving the victim a choice of whether to leave or to stay.[360] For example, one stakeholder said that ‘women are often the best judges of the risk of further violence towards themselves and their children’.[361]

11.218 The NSW Women’s Refuge Movement Working Party cautioned that a ‘blanket’ presumption is ‘ill conceived’ because there are many factors which need to be considered before determining whether exclusion is the best option, including the ongoing safety risks to the victim and what safety strategies can minimise these risks.[362]

11.219 Many stakeholders emphasised the importance of safety strategies beyond the mere making of an exclusion order. In a joint submission, Domestic Violence Victoria and others stated that ‘safety can only be assured when other systems responses are in place that support the exclusion condition’.[363] Another stakeholder said such a presumption ‘should not detract from the need for safe houses and emergency evacuation funds’.[364] Stakeholders also suggested that victims should be helped with all safety precautions—‘including locks being changed, security cameras, sensor lights security doors etc’;[365] and that ‘appropriate safety planning involving the police’ and ‘arrangements including the use of personalised duress alarms’ would also be of assistance.[366]

Commissions’ views

Duty to consider making exclusion orders

11.220 Courts issuing protection orders should be required to consider whether to make an exclusion order—as is the case in Victoria. This proposed legislative duty does not require a judicial officer to make an exclusion order—but to consider actively whether the circumstances of a particular case warrant such an order being made in the interests of ensuring victim safety. Implementation of this recommendation may go some way to increasing the likelihood of judicial officers making exclusion orders in appropriate circumstances, and to addressing the apparent ‘judicial unease’ in making such orders.[367]

11.221 The legislative duty to consider the making of an order should be complemented by educating and training police prosecutors and lawyers involved in family violence matters to raise this issue in appropriate circumstances.

Relevant factors

11.222 State and territory family violence legislation should address separately the factors which courts are required to take into consideration in making or declining to make an exclusion order—over and above the factors that are to be considered in making a protection order generally. The Victorian and NSW family violence legislation are instructive models in this regard. As stated by the AGS, ‘the advantage of specifying particular considerations is that it should ensure courts focus on matters considered especially important by the legislature and that the parties are aware of the particular significance of those matters’.[368]

11.223 In identifying relevant factors, it is important that the legislation distinguishes between the paramount consideration of ensuring the safety of a victim and her or his children, and other secondary factors. An exclusion order should only be made when it is necessary to secure the safety of a victim or affected child. Relevant to the issue of a victim’s safety and that of any affected children are their vulnerability, having regard to their physical, emotional and psychological needs as well as any disability. Secondary factors that a court should consider are the accommodation needs of, and options available to, the parties,[369] particularly in light of any disability that they may have—and the length of time required for any party to secure alternative accommodation. These factors are not intended to be exhaustive. There are others in the Victorian legislation—including those concerning the desirability of minimising disruption to the victim and child, which may also be instructive.

11.224 Identifying such factors necessarily acknowledges that decisions about whether or not to make an exclusion order involve competing rights. The making of an exclusion order in appropriate circumstances can have a significant positive impact on the safety and lives of victims and children—potentially avoiding their becoming homeless, and infusing a measure of stability at a time of emotional upheaval. Not making an exclusion order in appropriate cases can cause severe hardship—those subjected to severe violence may need to flee the home.

11.225 However, the making of such an order may also have a number of adverse consequences—not least rendering the excluded person homeless or in severely reduced circumstances, potentially fuelling an escalation of violence borne of resentment and bitterness, which can further threaten victim safety or indeed the safety of others. It is unsatisfactory to say that persons who use family violence have brought this situation upon themselves and should suffer the consequences. Nor is it realistic to consider that laws alone can address and resolve complex social problems.

Need for an integrated response

11.226 Addressing potential homelessness following a decision to make—or not to make—an exclusion order requires solutions beyond the scope of legal frameworks. A serious governmental response to family violence requires funding for emergency accommodation. If a person is excluded from his or her home, there needs to be an integrated response which involves providing necessary support and assistance to that person—not only in the interests of his or her welfare, but also in the interests of reducing risks to victim safety.[370] Critically, this entails the provision of emergency housing, links to support networks, access to relevant medication and aids necessary for a person’s daily life, as well as access to work tools and personal property.[371]

11.227 Similarly, victims and children need support to stay safe where an exclusion order is made. This could include, for example, police supervision of the eviction to ensure that an aggressor does not cause damage or commit further family violence; funding for the changing of locks, as well as the installation of security cameras, security doors and sensor lights. Equally, in circumstances where it is safer for a victim and her or his children to flee the family home, it is imperative that there be appropriate emergency and other accommodation and links to victim support and counselling services.[372]

11.228 The Commissions do not make a specific recommendation about any legislative obligation on police to take reasonable steps to secure accommodation for a person in cases where they are empowered to make exclusion orders, principally because the Commissions’ approach in Chapter 9 is to limit the circumstances in which police can issue protection orders. Family violence protection orders—and therefore exclusion orders—should, wherever possible, be made or authorised by a judicial officer.

11.229 However if, in the limited circumstances identified in Recommendation 9–1, police are empowered to make a protection order and therefore an exclusion order, the Commissions consider that police should take certain steps to assist the excluded person—including making enquiries of him or her about accommodation options, and referring that person to relevant housing and support services. The Commissions consider that this can properly be accommodated by police training and education, and the establishment of collaborative relationships between police and support services as part of an integrated response to family violence, rather than being imposed as a legislative duty.

No presumption that victim remains in home

11.230 The inclusion of a legislative presumption that victims should remain in the home when they reside with persons who use family violence, may result in problematic consequences in application. Significantly, it may compromise the safety of victims and children, by failing to recognise adequately that sometimes the safest options for victims is to leave the home. Victims should be able to make the choice about whether it is safest for them to remain in the home or to flee. Well-intentioned judicial officers in respecting such a presumption may inadvertently risk the safety of victims.

11.231 In addition, the application of such a presumption will be of little import where victims, including Indigenous victims, reside in the home of the aggressor with the family of the aggressor.

11.232 The reasons for which the Commissions refrain from making a recommendation about such a legislative presumption are consistent with the reasons discussed in Chapter 7 for not recommending that a core purpose of family violence legislation should be to ensure minimal disruption. Inevitably, on occasion, taking appropriate steps to ensure the safety of victims may require action which leads to significant disruption and upheaval—which is the case in those circumstances where it is safer for a victim to flee the home than to stay at an address known to the aggressor.

Providing reasons for not excluding

11.233 In the interests of promoting transparency and accountability in decision making judicial officers should be required to give reasons for not making an exclusion order where such an order has been sought. The family violence legislation of NSW provides an instructive model in this regard. This approach respects victims’ rights to have a court outcome explained to them.

Recommendation 11–8 State and territory family violence legislation should require judicial officers making protection orders to consider whether or not to make an exclusion order—that is, an order excluding a person against whom a protection order is made from premises shared with the victim, even if the person has a legal or equitable interest in such premises.

Recommendation 11–9 State and territory family violence legislation should provide that a court should only make an exclusion order when it is necessary to ensure the safety of a victim or affected child. Primary factors relevant to the paramount consideration of safety include the vulnerability of the victim and any affected child having regard to their physical, emotional and psychological needs, and any disability. Secondary factors to be considered include the accommodation needs and options available to the parties, particularly in light of any disability that they may have, and the length of time required for any party to secure alternative accommodation.

Recommendation 11–10 State and territory family violence legislation should require a court to give reasons for declining to make an exclusion order where such order has been sought.

Rehabilitation and counselling conditions in protection orders

11.234 The AGS noted that there are significant differences across the jurisdictions concerning the making of orders directing a person who has used family violence and who has had a protection order issued against him or her to attend counselling or rehabilitation programs or to refer that person to such programs.[373]

11.235 Five jurisdictions address the power of courts to attach conditions to protection orders involving either rehabilitation or counselling. Key differences between them include: whether such orders are mandatory or voluntary; whether they are available only on sentencing; and their effects.

11.236 The family violence legislation of the ACT and WA provides for voluntary counselling orders. The ACT Magistrates Court may recommend that the person against whom the protection order is made, or the victim, take part in a ‘program of counselling, training, mediation, rehabilitation or assessment’.[374] In WA, a court or the police, in making a protection order, must explain to the parties that counselling and support services may be of assistance and, where appropriate, refer them to specific services.[375]

11.237 By comparison, the family violence legislation of Victoria provides that the Family Violence Court Division, upon the making of a final protection order against a person, must order that the person be assessed for counselling, where there is approved counselling reasonably available and where it is appropriate to do so.[376] If the person is assessed as eligible to attend counselling, the Family Violence Court Division must order the person to attend counselling. It is an offence for the person to fail to attend counselling, without reasonable excuse.[377]

11.238 In the NT, a court may make an order requiring a person against whom a protection order is made to attend a rehabilitation program, but only if the person consents, the court is satisfied that the person is suitable to take part in the program and there is place in such program.[378] Similarly, under South Australian family violence legislation, a court may require a person against whom a protection order is made to undergo eligibility assessment for an intervention program, and if the person is eligible and the services are available, order the person to undertake such a program.[379]

11.239 The Queensland and Tasmania, family violence legislation allows courts to impose any conditions that the court considers necessary and desirable, which could include counselling or rehabilitation orders.[380]

11.240 In NSW, a court may impose ‘such prohibitions or restrictions on the behaviour of the defendant as appear necessary or desirable’.[381] Requiring someone to attend counselling or rehabilitation may go further than prohibiting or restricting that person’s behaviour. Therefore, the NSW legislation could be interpreted as not giving courts the power to make counselling or rehabilitation orders.

11.241 Application forms for protection orders, in those jurisdictions where there are legislative provisions concerning the imposition of conditions relating to rehabilitation or counselling, do not generally set out conditions relating to rehabilitation or counselling. One exception is the application form for a protection order in Victoria, which allows an applicant to indicate that she or he would like the court to encourage the person against whom the order is sought to contact the Men’s Referral Service.[382]

Rehabilitation orders pre-sentencing

11.242 In certain jurisdictions, rehabilitation orders may be made as part of the criminal process in the pre-sentencing phase. In NSW and SA, for example, courts may defer sentencing for up to 12 months on the date of a finding of guilt, for the purpose of:

  • assessing an offender’s capacity and prospects for rehabilitation or for participation in an intervention program;[383]
  • allowing an offender to demonstrate that rehabilitation has taken place; and
  • allowing the offender to participate in an intervention program.[384]

11.243 Such orders may overlap with protection order conditions requiring attendance at a rehabilitation or intervention program.

Rehabilitation orders on sentencing

11.244 In some jurisdictions rehabilitation orders can be made on sentencing. Tasmanian legislation empowers a court sentencing for a family violence offence to make a ‘rehabilitation program order’, either with or without recording a conviction.[385] In determining the sentence for a family violence offence, the court is required to take into account the results of any rehabilitation program assessment undertaken by the offender.[386]

11.245 In the NT, a court that finds a person guilty of an offence may order the person to participate in an ‘approved project’, which means a rehabilitation program or work, or both, approved by a community work advisory committee under the Prisons (Correctional Services) Act (NT).[387] This means that in the NT, a person against whom a protection order is made can be required to attend a rehabilitation program[388]—as noted above—and, if that person is found guilty of an offence related to family violence, may also be ordered to participate in a rehabilitation program.

11.246 In the ACT, if an offender is convicted or found guilty of an offence, the court in sentencing may make a good behaviour order, which may include a rehabilitation program condition;[389] as well as any other condition that the court considers appropriate, as long as it is not inconsistent with sentencing and sentencing administration legislation.[390] An example of such a condition provided by the legislation is ‘that the offender attend educational, vocational, psychological, psychiatric or other programs for counselling’.[391] This means that in the ACT, a person against whom a protection order is made under family violence legislation may be subject to a rehabilitation or counselling order, and if that same person is found guilty of a family-violence related offence, he or she may also be subject to a good behaviour bond containing a rehabilitation or counselling order.

11.247 Under South Australian sentencing legislation, a court may impose—as a condition of a good behaviour bond—a condition that the offender undertake an intervention program.[392] If an offender has participated in an intervention program, the court has a discretion to treat the offender’s participation and achievements in the program as relevant to sentence. However, the fact that an offender has not participated in, or had the opportunity to participate in, or performed badly in such a program is not relevant to sentence.[393]

11.248 In NSW, a court may impose a good behaviour bond on sentencing, which may contain a condition requiring the offender to participate in an intervention program,[394] or to participate in any program for treatment or rehabilitation that is not an intervention program.[395]

11.249 The Sentencing Advisory Council in Victoria considered the making of rehabilitation orders on sentencing in its 2009 report on sentencing practices for breach of protection orders.[396] Its consultations revealed that ‘the perceptions of the efficacy of these programs are mixed’.[397] The Council recommended that:

the government should consider funding the development and delivery of a statewide men’s behavioural change program specifically designed for offenders found guilty of offences in the family violence context.[398]

11.250 It also recommended that until this program is implemented, courts should develop procedures to monitor whether offenders are attending these programs where they have been ordered to do so as part of an adjourned undertaking.[399] The Victorian Government is considering these recommendations ‘in the context of the broader family violence reform agenda’.[400]

Submissions and consultations

11.251 In the Consultation Paper, the Commissions proposed that state and territory family violence legislation should be amended, where necessary, to allow expressly for courts making protection orders to impose conditions on persons against whom protection orders are made requiring them to attend rehabilitation or counselling programs, where they are suitable and eligible to participate in such programs.[401]

11.252 This proposal was supported by a significant number of submissions.[402] For example, the Queensland Law Society noted the value of such programs in preventing future violence:

properly run and resourced perpetrator programs that are run for a sufficient length of time and most importantly are linked in with services that are assisting the victims of violence can be an effective tool in preventing further acts of domestic violence and inter-generational transmission of domestic violence.[403]

11.253 Similarly, the Local Court of NSW expressed support in principle for mandatory assessment for counselling and rehabilitation ‘as a step in the right direction in helping to break the cycle of violence’.[404]

11.254 While not expressing a view on the imposition of rehabilitation and counselling programs as part of protection order proceedings, one stakeholder expressed ‘wholehearted’ support for ‘any initiative that may serve as an alternative to incarcerating Indigenous men and boys’.[405] Similarly, the North Australian Aboriginal Justice Agency submitted that:

if we are serious about addressing the issues which lead to family violence, and if we are to genuinely run a criminal justice system where imprisonment is the sentence of last resort, we must as a matter of urgency put in place culturally appropriate domestic violence counselling, anger management counselling, [and] psychological counselling services in all parts of the Northern Territory.[406]

Limited evidence of efficacy

11.255 However, there were a number of reservations expressed in relation to counselling and rehabilitation programs—including from stakeholders who supported the proposal. One concern is that there is limited evidence showing that such programs actually work.[407] This was one reason why some stakeholders did not support the proposal.[408] One stakeholder expressed the view that the programs are unlikely to work because ‘violence is successful behaviour that gives them what they want’.[409] The programs were even less likely to work—to change aggressive behaviour—when participants were forced to attend.[410] For these and other reasons, submissions stressed that programs need to be properly evaluated and that further research is required to examine whether, over time, such programs are effective in changing behaviour,[411] and to inform future development of the programs.[412]

11.256 The No to Violence Male Family Violence Prevention Association, however, noted that there can be benefits to these programs even where they do not result in sustained behavioural changes:

Some men, for example, might reduce their use of some forms of violence while in the program due to the scrutiny associated with their participation, which might provide their partners with some ‘breathing space’ through which to make decisions concerning safety, the relationship, etc, and to begin the process of healing. Men’s Behaviour Change Programs can also play a vital role in undertaking ongoing risk assessments by virtue of working regularly with the man and contacting his (former) partner to gauge the realities of his behaviour, and if there is any discernible short-term change.[413]

Akin to a sentencing option

11.257 In addition, some stakeholders were concerned that an order requiring someone to attend rehabilitation or counselling might seem like a sanction—‘akin to a sentence’.[414] Both Legal Aid NSW and the Law Society of NSW noted that the making of a protection order does not mean that an offence has been committed, and expressed the view that ‘the State needs to be cautious about the extent to which it seeks to compel people to do things not associated with the commission of a criminal offence’.[415]

11.258 Stubbs expressed concern about whether it was appropriate to attach such conditions to an order ‘made on the balance of probabilities and potentially without any admissions being made’:

Does this mean that the failure to attend counselling or rehabilitation in breach of an order could be criminalised? That would be an unwelcome outcome and arguably an over-reach of the criminal law.[416]

11.259 However it may be useful, Stubbs submitted, for information about these programs to be offered to persons against whom protection orders are sought.[417]

Enforcement

11.260 Enforcing orders to attend counselling or rehabilitation programs also raised concerns. One stakeholder, a counsellor, submitted that legally requiring individuals to attend rehabilitation and counselling programs is inappropriate, as it is likely to set them up for failure, and that it would be preferable to ‘encourage or support’ individuals to attend.[418] Other stakeholders, however, expressed the view that there should be criminal penalties for non-compliance, and that these penalties should be enforced.[419]

11.261 The Local Court of NSW submitted that an ‘appropriate penalty regime’ would need to be developed; however, this would require careful consideration so as not to impact adversely on victims.[420] The Court noted that penalties, such as fines, imposed for breaches of protection orders, sometimes harm victims indirectly.[421] The Court also emphasised the need for effective oversight of participation. In the Court’s view, without effective mechanisms in place to report breaches and enforce orders, the orders will be less effective and judicial officers will be less willing to make them.[422]

Access to programs

11.262 Some supported the idea ‘in theory’, but were concerned about how it would work in practice.[423]A number of stakeholders noted, for example, that such programs are not readily available in many regional and remote areas.[424] The Local Court of NSW stated that the regions with the highest number of protection orders ‘have consistently been those located outside the Sydney metropolitan area’,[425] while another stakeholder noted that currently such programs may not even be available in metropolitan areas.[426]

11.263 Other stakeholders expressed the view that, overall, there is a ‘dire shortage’ of services,[427] and that programs are not available at all for women who use family violence.[428] One counsellor concluded that attendance ‘at a private practice where the clinician does not qualify [for the Medicare rebate], and where the offending person will have to pay for the service, may be the only option’.[429] Other submissions stressed that greater resources and funding would clearly be necessary if this proposal were to be properly implemented.[430]

11.264 The Department of Premier and Cabinet (Tas) said the programs would need to be ‘family violence specific, available, properly resourced, evidence based, quality-assured and monitored’.[431]

Programs should be targeted and effective

11.265 Submissions also stressed that programs need to be appropriate and effective.[432] For example, the Queensland Law Society submitted that it was essential that the programs be run for an adequate period of time, noting that ‘overseas research indicates that programs should be run for a minimum of 26 to 52 weeks’.[433] The Hunter Women’s Centre expressed the view that generic rehabilitation programs and counselling sessions were not effective; programs must be structured and targeted specifically for persons who have used family violence.[434]

11.266 The North Australian Aboriginal Justice Agency stated that there was a need to target alcohol and other drug dependencies, which were said to be ‘an important contributing factor’ to family violence.[435] Another stakeholder submitted that the programs ‘must be facilitated by specialist men’s workers in conjunction with women’s services’ and must be

centred around the perpetrator becoming responsible and acknowledging [his or her] the abuse … Ordinary counselling services do not do this. The courses must be recognised as being knowledgeable around the dynamics of domestic abuse and violence, such as the use of power and control tactics.[436]

Programs should be culturally appropriate

11.267 Programs should also be culturally appropriate.[437] The Aboriginal Family Violence Prevention and Legal Service Victoria stated that there should be ‘ATSI specific programs’.[438] Another stakeholder noted the need for services targeted at men from culturally and linguistically diverse backgrounds.[439] Programs should also be available for ‘adolescent or adult children who are using violence towards their parents or other elders’.[440]

Programs should not be relied on to ensure victim safety

11.268 Another key concern about this proposal was that counselling orders might be relied on to justify the imposition of a lighter set of other conditions,[441] or as a substitute for providing for the protection of victims.[442] The No to Violence Male Family Violence Prevention Association noted that:

Attending a men’s behaviour change program is by no means a guarantee that a man will change his behaviour and therefore lessen the risk of harm to his (former) partner and children.[443]

11.269 It was suggested that counselling and rehabilitation orders should be ‘additional conditions to be attached to protection orders’[444] or should be made as separate orders.[445] This approach would help to ensure that protection orders are not diluted or revoked, and that participation in a program would be ‘less likely to be seen as a safety condition related to the victim’s protection’.[446]

11.270 Stakeholders also noted that counselling orders can give victims ‘a false sense of security or encouragement’,[447] and this can mean they remain in unsafe situations.[448]

Application forms for protection orders

11.271 In the Consultation Paper, the Commissions also proposed that application forms for protection orders should specify conditions relating to rehabilitation or counselling or allow a victim to indicate whether she or he wishes the court to encourage the person who has used violence to contact an appropriate referral service.[449]

11.272 A significant number of submissions supported this proposal.[450] One stakeholder submitted that the person who needs protection will often have ‘the best knowledge of other measures which might promote his or her safety’.[451]

11.273 Some stakeholders, however, expressed some concern about placing the onus on the victim to indicate that the person who has used violence should be referred to an appropriate program.[452] For example, the No to Violence Male Family Violence Prevention Association submitted that application forms should not be the primary mechanism initiating referral to counselling and rehabilitation programs.[453] The Association supported a response that was ‘systems based, rather than the onus being on affected family members to take the initiative’. The Association suggested that police, magistrates and other relevant court personnel should also have a role in encouraging ‘men identified as respondents to participate in a men’s behaviour change program’.[454]

11.274 Women’s Legal Services NSW opposed the proposal on the basis that it:

risks placing considerable pressure on victims of family violence to provide solutions for conduct of the offender which is best dealt with seriously and appropriately as family violence (with associated legislated protections and criminal justice responses).[455]

Imposed without express power

11.275 In the Consultation Paper, the Commissions asked whether judicial officers in jurisdictions, such as NSW and Queensland, in which family violence legislation does not specify expressly rehabilitation or counselling programs as potential conditions attaching to a protection order, in fact, impose such conditions as part of their general power to impose any orders that they consider to be necessary or desirable.[456]

11.276 Under the NSW family violence legislation, it was submitted, there is no power to impose rehabilitation or counselling conditions on the making of an order. A court may impose ‘prohibitions or restrictions’ on a person’s behaviour, but not a positive obligation to do something, such as attend a program.[457] One legal service provider said that the imposition of such conditions in NSW ‘does not happen very often at all’;[458] and another noted that a ‘now retired Magistrate at a suburban Sydney Court made such orders on a few occasions—which provided the victim with great comfort and trust that the Court was “listening” to her’.[459]

11.277 In Queensland, it was submitted, magistrates do not generally impose these conditions[460]—except ‘from time to time’ on the Gold Coast.[461] However, courts may sometimes suggest that someone attend a program or counselling.[462] Women’s Legal Service Queensland submitted that it had not seen such conditions ‘requested, granted or refused’ nor even suggested by the magistrate.[463] National Legal Aid submitted that ‘issues of what would happen if the person did not comply with the conditions would arise as there is no framework or process for monitoring’ compliance.[464]

11.278 The Department of Premier and Cabinet (Tas) submitted that such orders are not imposed in Tasmania as part of protection order conditions, although participation in counselling or some other form of program may be required ‘before the court will agree that there has been a change of circumstances justifying the variation of an order’.[465]

Conflicting obligations

11.279 In the Consultation Paper, the Commissions asked whether overlapping or conflicting obligations are placed on persons as a result of conditions imposed by protection orders under family violence legislation requiring attendance at rehabilitation or counselling programs and any orders to attend such programs either pre-sentencing or as part of the sentencing process.[466]

11.280 Only a few submissions addressed this question. One stakeholder said that in its experience this does not happen;[467] another said it happens sometimes.[468]

11.281 Other stakeholders addressed how such an issue is or could be addressed if it arises. National Legal Aid submitted that ‘access by respective courts to information held by the other should address this problem to the extent that it occurs’.[469] A legal service provider submitted that the problem ‘can easily be avoided if a defendant has a competent lawyer’.[470]

Commissions’ views

Availability of rehabilitation and counselling conditions

11.282 While the imposition of rehabilitation and counselling conditions as part of a protection order raises some challenging issues in application, the Commissions consider that these challenges ought to be met as part of a broad integrated response to family violence. It is important for family violence legislation to allow expressly for courts making protection orders to impose conditions requiring persons to attend rehabilitation or counselling programs in appropriate circumstances—the details of which are set out below.

11.283 As stated in Chapter 7, common purposes of family violence legislation should be to prevent or reduce family violence and to ensure that persons who use family violence are made accountable for their conduct. One important way of achieving these objectives is to endeavour to rehabilitate the offender in order to stop the cycle, and intergenerational transmission, of violence.

11.284 Rehabilitation programs are an essential measure for treating the causes rather than the symptoms of family violence.[471] While protection order conditions prohibiting or restricting a respondent’s contact with the victim may assist in reducing or preventing violence against that victim in the short term, successful participation by a respondent in appropriate and relevant rehabilitation and counselling programs has the advantage of targeting the long-term reduction or prevention of family violence—including as against persons other than the victim the subject of the protection order.

11.285 The Commissions note that there is a lack of consensus about the effectiveness of general or specific counselling and rehabilitation programs currently operating in Australia.[472] A key feature of an integrated response is ongoing data collection and evaluation, with a view to system review and process improvements,[473] and the Commissions consider that rehabilitation and counselling programs for persons who use family violence should be the subject of continuing monitoring and evaluation.

11.286 In the Commissions’ view, because some persons who use violence can benefit from rehabilitation or counselling programs,[474] courts should be empowered to order a person against whom a protection order is made to attend such programs, where the person is suitable and eligible to participate. The fact that imposition of a rehabilitation or counselling order may be an option on sentencing should not preclude the availability of such options when a protection order is imposed. This is important for two reasons. First, not all conduct which gives rise to a protection order is criminal. Secondly, even if the offending conduct that gives rise to a protection order is criminal and is prosecuted, if the prosecution fails, protection order conditions aimed at rehabilitation could still be imposed.

Appropriate circumstances for imposition of such conditions

11.287 A court should have discretion as to whether to impose conditions requiring persons to attend rehabilitation or counselling programs, and as to whether to impose such orders on the making of an interim or final protection order.

11.288 In each case, the court should not make such an order without being satisfied that the person is a suitable person to participate, is eligible to participate, and the program is accessible to the person. The assessment for eligibility and suitability should be undertaken by an independent professional required to report to the court on this issue. Relevant considerations in assessing eligibility and suitability—which could be contained in regulations—should include whether the respondent consents to the order; the availability of transport; and the respondent’s work and educational commitments, cultural background and any disability. In general terms, the Commissions agree that consent is a necessary prerequisite to suitability to participate in such programs pursuant to the making of a protection order condition. Coercively-imposed rehabilitation programs are less likely to be effective.

11.289 Where such a condition is imposed on the making of an interim protection order, the completion of the program should be a factor in the court’s determination as to whether a final order is appropriate, the conditions in the final order and its duration.

Meeting practical challenges in implementation

11.290 Obviously, requiring a person to attend a rehabilitation or counselling program—whether as part of a protection order condition or as a sentencing option—assumes that such programs are available. As one District Court judge in WA commented:

It is a tragedy of the criminal justice system in Western Australia that alcohol treatment programs and family violence counselling programs are not available in the more remote parts of the State. Judges involved in sentencing family violence offenders in the Kimberley, for example, realise that there is almost nothing in the community to support an offender who may be trying to heal the relationship and avoid alcohol.[475]

11.291 It is essential that rehabilitation and counselling programs are: available and accessible, including in remote and regional areas; culturally appropriate; gender appropriate; relevant and targeted to the causes of offending behaviour. Achieving this aspiration will require funding, and the deployment of significant and appropriate resources to develop and conduct such programs, including the training of specialised personnel. A serious long-term integrated response to family violence demands no less a commitment.[476]

Enforcement

11.292 In order for such orders to be effective, there need to be sanctions for failure to comply. There is, however, an understandable concern about criminalising breach of a condition to complete a rehabilitation or counselling program or to attend for assessment. As discussed in Chapter 12, breach of a protection order is a criminal offence and maximum terms of imprisonment vary across the jurisdictions from one year to five years imprisonment, and maximum fines vary from $2,400 to $44,000.

11.293 The Commissions consider that it is appropriate to restrict a court’s sentencing options for breaches of rehabilitation and counselling orders. The failure to attend such programs should not lead to imprisonment. The maximum penalty should be a fine, which is set at a lower level than the maximum penalty for breaching a protection order in the jurisdiction in which the breach occurs.[477] On breach, courts should retain the discretion to adjourn the matter to allow an opportunity for compliance, having regard, for example, to the extent to which a program has been completed and to any difficulties that a person has faced in achieving compliance, such as medical reasons. In addressing appropriate financial penalties, courts should have regard to the potential adverse impact on the victim of violence.

Provision of information about programs

11.294 The Commissions acknowledge the concerns expressed by some stakeholders that the rehabilitation and counselling of those who use family violence require systemic address, and that the onus should not be placed on victims to suggest or seek that such persons are referred to these programs. Therefore the Commissions do not recommend that application forms specify conditions relating to rehabilitation or counselling nor allow a victim to indicate whether she or he wishes the court to encourage the aggressor to contact an appropriate referral service.

11.295 In the Commissions’ view it is incumbent on courts to provide persons against whom protection orders are made with information about relevant culturally and gender-appropriate rehabilitation and counselling programs where appropriate. This will involve developing or collating appropriate information and making it available in all court registries. One way of implementing this recommendation would be for this information to be attached to protection orders served on such persons.

Recommendation 11–11 State and territory family violence legislation should provide that:

  1. courts have an express discretion to impose conditions on persons against whom protection orders are made requiring them to attend rehabilitation or counselling programs, where such persons have been independently assessed as being suitable and eligible to participate in such programs;
  2. the relevant considerations in assessing eligibility and suitability to participate in such programs should include: whether the respondent consents to the order; the availability of transport; and the respondent’s work and educational commitments, cultural background and any disability; and
  3. failure to attend assessment or to complete such a program should not attract a sentence of imprisonment, and the maximum penalty should be a fine capped at a lower amount than the applicable maximum penalty for breaching a protection order.

Recommendation 11–12 Where appropriate, state and territory courts should provide persons against whom protection orders are made with information about relevant culturally and gender-appropriate rehabilitation and counselling programs.

Other interactions between protection orders and sentencing

11.296 The discussion below addresses interactions between non-contact and place restriction orders imposed on sentencing, with similar conditions in protection orders; as well as the issue of taking protection order conditions into account in sentencing.

Non-contact orders

11.297 The Queensland sentencing legislation allows a court, on the sentencing of an offender for a personal offence, to make a non-contact order, which prohibits the offender, for a specified period, from:

  • contacting the victim against whom the offence was committed; or someone who was with the victim when the offence was committed; and/or
  • going to a stated place or within a stated distance of a specified place.[478]

11.298 However, that legislation prohibits such an order from being made if an order can be made under s 30 of the Queensland family violence legislation. Section 30 empowers a court to make a protection order on its own initiative when a person pleads guilty to, or is found guilty of, an offence that involves family violence.[479]

Place restriction orders

11.299 Place restriction orders are available as a sentencing option in NSW and Tasmania.[480] In Tasmania, a court may make an ‘area restriction order’ if it finds a person guilty of an offence. An ‘area restriction order’ is an order that the offender must not loiter in an area or class of area specified in the order at any time or during such periods as specified in the order.

11.300 In NSW, place restriction orders are only available on sentencing for offences punishable by imprisonment for six months or more. A place restriction order prohibits the offender from frequenting or visiting a specified place or district for a specified term and can be made by the court if it is satisfied that it is reasonably necessary to make such an order to ensure that the offender does not commit any further offences.[481]

11.301 Place restriction or area restriction orders imposed on sentencing for a family-violence related offence have the potential to overlap or conflict with conditions attached to a protection order prohibiting or restricting a person’s access to certain premises.

Submissions and consultations

11.302 In the Consultation Paper, the Commissions asked whether there had been cases where there has been overlap or conflict between place restriction or area restriction orders imposed on sentencing and protection order conditions which prohibit or restrict the same person’s access to certain premises.[482]

11.303 Only a few submissions addressed this question. One stakeholder said that it had not seen this happen.[483] The Queensland Law Society said many magistrates avoid distance or area restriction orders because they can be particularly difficult to enforce.[484]

11.304 A few stakeholders, however, submitted that there had been cases of such overlap or conflict.[485] The Local Court of NSW submitted that this may arise ‘where a protection order is made at a different time to the sentencing for a criminal matter’, but that this was rare because in NSW the matters are dealt with together.[486] Inconsistencies were more common, the Court submitted, ‘where police bail is granted when an existing protection order is in place’.[487]

11.305 National Legal Aid submitted that the risk of overlap or conflict should be minimised by ‘coordinated and appropriate information sharing processes between relevant agencies/courts’.[488]

Commissions’ views

11.306 As this issue does not appear to be a significant problem in practice, the Commissions make no specific recommendation in this regard. However, in any event, the Commissions consider that the potential for conflicting non-contact and place restriction conditions to be imposed is likely to be minimised if the recommendations made by the Commissions in Chapter 32, concerning specialised practices, are implemented. Of particular relevance are the recommendations about the use of specialised family violence courts with specialised judicial officers to deal with both protection order proceedings and criminal offences arising in a family violence context—as well as the mainstreaming of such specialist practices in other state and territory courts.

11.307 In addition, access to information on the proposed national protection order database may also go some way to avoiding the imposition of conditions on sentence which conflict with conditions contained in a protection order.[489]

Taking protection order conditions into account in sentencing

11.308 Another issue which arises on the sentencing of an offender for a family-violence related offence is the extent to which courts take into account the conditions that have been imposed by a protection order under family violence legislation. A related issue is whether courts should take protection order conditions into account in sentencing. The views of stakeholders on these two issues are canvassed below.

Whether protection order conditions are taken into account in practice

11.309 Prior to the release of the Consultation Paper, the Commissions heard in consultation that, in NSW, protection orders are regularly taken into account in sentencing. It is relevant for the court imposing sentence to know the length of the protection order and the extent of the prohibitions placed on the offender to be sentenced. If an order is very restrictive and lasts for an extended time it may influence the penalties to be imposed on sentencing. In addition, it is relevant for the court to know whether any rehabilitation was ordered as part of the protection order—in those jurisdictions where this is permissible—because if not, a condition to this effect may be appropriate in a good behaviour bond.[490]

11.310 The Commissions also heard that District Court judges who sentence offenders for family-violence related offences in WA have available to them a pre-sentence report, and that offenders are invariably represented by counsel. Therefore any existing protection orders are brought to the attention of the sentencing judge.[491]

11.311 Some stakeholders expressed concern about attendance at rehabilitation programs or willingness to attend such programs being relied upon as mitigating factors in sentencing, in the absence of longitudinal evidence that such programs, in fact, reduce violence.[492]

11.312 In the Consultation Paper, the Commissions asked whether, in practice, courts sentencing offenders for family violence related offences are made aware of, and take into account, any protection order conditions to which the offender to be sentenced is or has been subject.[493]

11.313 Some submitted that courts are made aware of these conditions[494] and take them into account,[495] though one stakeholder questioned the weight courts give to the orders and related family violence convictions.[496] They are taken into account in NSW, it was submitted, because the matters are dealt with concurrently.[497]

11.314 Others submitted that prosecutors[498] and ‘competent’ lawyers[499] will direct the court to these conditions. National Legal Aid submitted that prosecutors should inform the court of ‘all relevant facts surrounding charges arising from domestic violence incidents and restraining order breaches’.[500]

11.315 Other stakeholders submitted that courts are not made aware of these conditions[501]—or only where the charge relates to the breach of a protection order.[502] Both Legal Aid NSW and an advocacy service said police prosecutors will ordinarily give the magistrate a copy of a criminal record, but may not indicate whether a protection order is in place or has been in place.[503]

11.316 National Legal Aid submitted that in imposing sentence, courts already have

significant regard to the factor that offences have occurred in a domestic relationship and have particular concern when a restraining or protection order has been breached.[504]

Whether protection order conditions should be taken into account in sentencing

11.317 In the Consultation Paper, the Commissions proposed that state and territory legislation should provide that a court sentencing an offender for a family-violence related offence should take into account, in sentencing the offender:

(a) any protection order conditions to which the person being sentenced is subject, where those conditions arise out of the same or substantially the same conduct giving rise to the prosecution for the offence; and

(b) the duration of any protection order to which the offender is subject.[505]

11.318 A significant number of stakeholders supported this proposal,[506] and one submitted that the court should also be informed how to take the orders into account, because the orders ‘ought not be regarded as a mitigating factor’.[507]

11.319 Two stakeholders noted that if the sentence is for a longer duration than the protection order, victims may wish to have protection orders extended so that the orders have the same duration as the sentence.[508]

11.320 However, two stakeholders submitted that there appeared to be no need for the proposal, either because courts take these matters into account anyway or because it was covered in current sentencing legislation.[509] The Local Court of NSW submitted that the current legislative provisions are operating well in practice.[510]

Commissions’ views

11.321 Courts should consider any protection order conditions to which an offender to be sentenced for a family violence offence is subject, where those conditions arise out of the same or substantially the same conduct giving rise to the prosecution for the offence. It is particularly relevant for courts to take into account those conditions which may have caused significant hardship—such as exclusion orders. This approach is consistent with the ALRC recommendation, made in the ALRC’s 2006 report on the sentencing of federal offenders, that relevant sentencing factors include any detriment sanctioned by law to which the offender has been or will be subject.[511]

11.322 To avoid making overlapping orders concerning rehabilitation or counselling programs, a court sentencing an offender must know whether the person has or is attending such a program pursuant to a protection order condition. It is also relevant, in this regard, for the court sentencing an offender for a family-violence related offence to take into account the duration of any protection order to which the offender is subject.

11.323 A court’s legislative obligation to take such matters into account should be complemented by guidance in the proposed national bench book on family violence.[512] As recommended in Chapter 13, the national bench book should contain a section that addresses sentencing in family violence matters.

11.324 The Commissions note that some stakeholders have expressed the view that attendance at rehabilitation programs should not be a mitigating factor in sentencing.[513] In the Commissions’ view, whether or not attendance at a rehabilitation program can be treated as mitigating depends on a variety of factors—including whether the offender completed the program, whether there is evidence that the offender has changed his or her behaviour since the completion of the program, and the type and duration of the program. Completion of an intensive 12 month program may be more compelling than completion of a program that ran for one or two weeks. The Commissions consider that this is properly a matter for judicial discretion. Moreover, retaining judicial discretion in this way also serves to provide some incentive for those who commit family violence to participate in rehabilitation programs, thereby increasing the prospect of reducing family violence in the long term.

Recommendation 11–13 State and territory legislation should provide that a court sentencing an offender for a family-violence related offence should take into account:

  1. any protection order conditions to which the person being sentenced is subject, where those conditions arise out of the same or substantially the same conduct giving rise to the prosecution for the offence; and
  2. the duration of any protection order to which the offender is subject.

[168] The potential overlap between conditions in protection orders and bail conditions is discussed in Ch 10.

[169] As noted below, a limited number of jurisdictions have in place restriction orders as a sentencing option.

[170] Australian Government Solicitor, Domestic Violence Laws in Australia (2009), 13.

[171] For example, Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 35(1).

[172] For example, Domestic and Family Violence Act 2007 (NT) s 21(1)(b).

[173] For example, Family Violence Protection Act 2008 (Vic) s 81(2)(a); Penalties and Sentences Act 1992 (Qld) s 22.

[174] For example, Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 12(1)(i); Domestic Violence and Protection Orders Act 2008 (ACT) s 48(2)(f).

[175]Family Violence Act 2004 (Tas) s 14(3)(d); Domestic and Family Violence Act 2007 (NT) s 21(1)(a).

[176] For example, Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 35(2)(a),(b); Family Violence Protection Act 2008 (Vic) ss 81(2)(b), 82; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 12(1)(a), (5).

[177] For example, Family Violence Protection Act 2008 (Vic) s 81(2)(e); Penalties and Sentences Act 1992 (Qld) s 22. See also Restraining Orders Act 1997 (WA) s 13(2)(c).

[178]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 35(2)(a), (c).

[179]Family Violence Protection Act 2008 (Vic) s 81(2)(d). Restraining Orders Act 1997 (WA) s 13(2)(d) prohibits communicating or attempting to communicate with the victim.

[180]Penalties and Sentences Act 1992 (Qld) s 25(3)(d).

[181] For example, Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 35(2)(e); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 12(1)(f).

[182] For example, Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 36.

[183]Penalties and Sentences Act 1992 (Qld) s 25(3)(e). This section does not prohibit the person against whom the order is made from asking his or her lawyer to contact the victim: s 25(7).

[184] For example, Family Violence Protection Act 2008 (Vic) s 81(2)(f); Restraining Orders Act 1997 (WA) s 13(2)(f); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 12(1)(h).

[185]Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 12(1)(g).

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

[187] For example, Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 35(2)(d); Family Violence Act 2004 (Tas) s 16(3)(b). Other legislation frames this in terms of revoking, suspending or cancelling weapons approval or firearms authority, eg, Family Violence Protection Act 2008 (Vic) s 81(2)(g),(h) or requiring the person to surrender specified weapons or articles that could be used to commit violence against the victim: Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 12(1)(k).

[188]Restraining Orders Act 1997 (WA) s 14.

[189]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 36.

[190]Penalties and Sentences Act 1992 (Qld) ss 22, 25(1).

[191]Family Violence Act 2004 (Tas) s 16(3); Domestic and Family Violence Act 2007 (NT) s 22.

[192] For example, Family Violence Protection Act 2008 (Vic) s 158; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 14.

[193] For example, Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 12(1)(j). Personal property directions—dealing with the return of personal property to a victim, or allowing a victim or the person against whom a protection order is made to collect personal property following the making of an exclusion order—are discussed in Ch 16.

[194] Ibid s 13.

[195]Domestic and Family Violence Act 2007 (NT) s 24.

[196]Domestic Violence and Protection Orders Act 2008 (ACT) s 48(2)(j).

[197]Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 24.

[198]Problem Gambling Family Protection Orders Act 2004 (SA) s 5.

[199] Exclusion orders are discussed below.

[200] R Hunter, Domestic Violence Law Reform and Women’s Experience in Court: The Implementation of Feminist Reforms in Civil Proceedings (2008), 81. A great number of protection orders are made by consent, and the making of consent orders is discussed in Ch 18.

[201] Ibid, 98.

[202] In South Australia, this information is set out in the Magistrates Court of South Australia, Affidavit to Support Application for Domestic Violence Restraining Order <www.courts.sa.gov.au> at 8 March 2010. Local courts in NSW have a pro forma bench sheet attached to the court file which allows the court to tick the relevant orders.

[203] Magistrates Court of Western Australia, Violence Restraining Order Application <www.magistratescourt
.wa.gov.au/content/restraining.aspx> at 9 April 2010.

[204] Magistrates’ Court of Victoria, Information for Application for an Intervention Order (2009) <www.magistratescourt.vic.gov.au> at 2 February 2010. As noted below, however, certain conditions concerning rehabilitation and counselling are not generally included on application forms.

[205] Consultation Paper, Question 6–7.

[206] Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; Confidential, Submission FV 81, 2 June 2010; Confidential, Submission FV 77, 2 June 2010. One submission stated that more research into this question was needed: 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.

[207] National Legal Aid, Submission FV 232, 15 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 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.

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

[209] National Legal Aid, Submission FV 232, 15 July 2010; Confidential, Submission FV 171, 25 June 2010.

[210] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

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

[212] Ibid.

[213] Ibid.

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

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

[216] J Stubbs, Submission FV 186, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; Confidential, Submission FV 128, 22 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 71, 1 June 2010.

[217] Confidential, Submission FV 183, 25 June 2010; Confidential, Submission FV 164, 25 June 2010.

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

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

[220] National Legal Aid, Submission FV 232, 15 July 2010. This concern was echoed in another consultation: Northern Territory Legal Aid Commission, Consultation, Darwin, 26 May 2010.

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

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

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

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

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

[226] Ibid.

[227] Consultation Paper, Proposal 6–5.

[228] National Legal Aid, Submission FV 232, 15 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; J Stubbs, Submission FV 186, 25 June 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; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 171, 25 June 2010; Confidential, Submission FV 164, 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; 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; Confidential, Submission FV 130, 21 June 2010; Confidential, Submission FV 128, 22 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 81, 2 June 2010; Confidential, Submission FV 78, 2 June 2010; Confidential, Submission FV 71, 1 June 2010; Confidential, Submission FV 69, 2 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010. The Queensland Law Society noted that ‘this has been a condition open to magistrates since 2003 in Queensland’: Queensland Law Society, Submission FV 178, 25 June 2010.

[229] 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.

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

[231] Confidential, Submission FV 184, 25 June 2010.

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

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

[234] Legal Aid NSW, Submission FV 219, 1 July 2010. A similar point was made in relation to family court proceedings generally, in Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010.

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

[236] Law Society of New South Wales, Submission FV 205, 30 June 2010. See also Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[237] T McLean, Submission FV 204, 28 June 2010.

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

[239] Legal Aid NSW, Submission FV 219, 1 July 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010.

[240] Victorian Government, Submission FV 120, 15 June 2010.

[241] Government of South Australia, Submission FV 227, 9 July 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010.

[242] Government of South Australia, Submission FV 227, 9 July 2010.

[243] Better Care of Children, Submission FV 72, 24 June 2010.

[244] Consultation Paper, Proposal 6–6.

[245] 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; 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; 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; 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; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 128, 22 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 81, 2 June 2010; Confidential, Submission FV 71, 1 June 2010; Confidential, Submission FV 69, 2 June 2010; Northern Territory Legal Aid Commission, Consultation, Darwin, 26 May 2010; Domestic Violence Legal Service, Consultation, Darwin, 26 May 2010.

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

[247] National Legal Aid, Submission FV 232, 15 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 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.

[248] Berry Street Inc, Submission FV 163, 25 June 2010.

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

[250] Better Care of Children, Submission FV 72, 24 June 2010.

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

[252] Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[253] For example, Domestic Violence Legal Service, Consultation, Darwin, 26 May 2010.

[254] See Chs 31, 32.

[255] See, eg, Family Violence Act 2004 (Tas) s 16(3).

[256] As noted below, for a court to not make an exclusion order can also have negative repercussions for a victim and children.

[257] Australian Government Solicitor, Domestic Violence Laws in Australia (2009), 146. Some family violence legislation allows courts to alter tenancy agreements in favour of victims during protection order determinations: see K Wilcox, Recent Innovations in Australian Protection Order Law: A Comparative Discussion (2010), prepared for the Australian Domestic and Family Violence Clearinghouse, 11–12. The interaction of family violence laws and state and territory residential tenancy laws is beyond the scope of the Terms of Reference.

[258]Family Violence Protection Act 2008 (Vic) s 82(1).

[259] Ibid s 82(2). Special considerations apply where an exclusion order is to be made against a child: s 83.

[260] Ibid s 82(2).

[261] Ibid.

[262]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 17(2)(a).

[263]Penalties and Sentences Act 1992 (Qld) s 25A(3). Personal property directions are discussed in more detail in Ch 16.

[264] Australian Government Solicitor, Domestic Violence Laws in Australia (2009), 146.

[265]Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 10.

[266]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 17(2)(c) requires the court to have regard to the ‘accommodation needs of all relevant parties, in particular the protected person and any children’. The court is also required to give reasons for not making an exclusion order in circumstances where one is sought: s 17(4).

[267]Family Violence Protection Act 2008 (Vic) s 83(3). In such cases the court must be satisfied that the child has appropriate alternative accommodation, care and supervision.

[268] Ibid s 83(4).

[269]Domestic and Family Violence Act 2007 (NT) s 19(2)(b).

[270]Penalties and Sentences Act 1992 (Qld) s 25(2).

[271]Domestic Violence and Protection Orders Act 2008 (ACT) s 47(1)(c), (d).

[272]Restraining Orders Act 1997 (WA) s 12(1)(d), (e).

[273]Family Violence Protection Act 2008 (Vic) s 36.

[274]Domestic and Family Violence Act 2007 (NT) s 20.

[275] Northern Territory, Parliamentary Debates, Legislative Assembly, 17 October 2007, 4846 (S Stirling—Attorney-General), 4848.

[276] Consultation Paper, Proposal 6–7.

[277] 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; Confidential, Submission FV 198, 25 June 2010; NSW Women’s Refuge Movement Working Party Inc, Submission FV 188, 25 June 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; 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 171, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Berry Street Inc, Submission FV 163, 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; Disability Services Commission (WA), Submission FV 138, 23 June 2010; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 128, 22 June 2010; Victorian Government, Submission FV 120, 15 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 81, 2 June 2010; Confidential, Submission FV 77, 2 June 2010; Confidential, Submission FV 71, 1 June 2010; Confidential, Submission FV 69, 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.

[278] Confidential, Submission FV 77, 2 June 2010.

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

[280] Disability Services Commission (WA), Submission FV 138, 23 June 2010.

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

[282] Ibid.

[283] 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. See also Women’s Legal Services NSW, Submission FV 182, 25 June 2010, which suggested legislative change be accompanied by judicial education in the use of exclusion orders.

[284] Victorian Government, Submission FV 120, 15 June 2010.

[285] Confidential, Submission FV 184, 25 June 2010.

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

[287] Better Care of Children, Submission FV 72, 24 June 2010.

[288] T McLean, Submission FV 204, 28 June 2010.

[289] Consultation Paper, Proposal 6–8.

[290] Confidential, Submission FV 198, 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; 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 171, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Berry Street Inc, Submission FV 163, 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; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 128, 22 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 81, 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; 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.

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

[292] Legal Aid NSW, Submission FV 219, 1 July 2010; Confidential, Submission FV 77, 2 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

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

[294] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Disability Services Commission (WA), Submission FV 138, 23 June 2010; No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010; Confidential, Submission FV 77, 2 June 2010.

[295] Disability Services Commission (WA), Submission FV 138, 23 June 2010.

[296] Victorian Government, Submission FV 120, 15 June 2010.

[297] 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.

[298] No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

[299] T McLean, Submission FV 204, 28 June 2010.

[300] Disability Services Commission (WA), Submission FV 138, 23 June 2010.

[301] Ibid.

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

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

[304] Ibid.

[305] NSW Women’s Refuge Movement Working Party Inc, Submission FV 188, 25 June 2010.

[306] Ibid.

[307] Consultation Paper, Question 6–8.

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

[309] J Stubbs, Submission FV 186, 25 June 2010. The issue of whether police should be able to issue protection orders, and in what circumstances, is discussed in Ch 9.

[310] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Confidential, Submission FV 183, 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; 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; No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010; Confidential, Submission FV 81, 2 June 2010; Confidential, Submission FV 77, 2 June 2010; Confidential, Submission FV 71, 1 June 2010; Confidential, Submission FV 69, 2 June 2010. The Victorian Government supported the police having to make reasonable enquiries about temporary accommodation for the excluded person: Victorian Government, Submission FV 120, 15 June 2010.

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

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

[313] National Legal Aid, Submission FV 232, 15 July 2010l; No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010. See also Legal Aid NSW, Submission FV 219, 1 July 2010.

[314] Confidential, Submission FV 77, 2 June 2010. Another stakeholder also expressed the view that victims should not be ‘left in an unsafe situation because the perpetrator has no alternative accommodation’: Peninsula Community Legal Centre, Submission FV 174, 25 June 2010.

[315] No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

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

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

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

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

[320] Berry Street Inc, Submission FV 163, 25 June 2010.

[321] Queensland Law Society, Submission FV 178, 25 June 2010; Police Association of New South Wales, Submission FV 145, 24 June 2010; Gosnells Community Legal Centre Inc, Submission FV 56, 31 May 2010.

[322] N Ross, Submission FV 129, 21 June 2010.

[323] Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010. See also Women’s Legal Service Queensland, Submission FV 185, 25 June 2010. Another stakeholder also expressed the view that preferably a non-government organisation or program should be engaged to secure alternative accommodation: Confidential, Submission FV 109, 8 June 2010.

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

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

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

[327] Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Confidential, Submission FV 183, 25 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010. See also T McLean, Submission FV 204, 28 June 2010. The need for police to receive training in dealing was also emphasised by National Legal Aid: National Legal Aid, Submission FV 232, 15 July 2010.

[328] Consultation Paper, Proposal 6–9.

[329] 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; NSW Women’s Refuge Movement Working Party Inc, Submission FV 188, 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; 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; 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; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 128, 22 June 2010; Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010; Confidential, Submission FV 81, 2 June 2010; Confidential, Submission FV 77, 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; 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.

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

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

[332] 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.

[333] Commissioner for Victims’ Rights (South Australia), Submission FV 111, 9 June 2010.

[334] Confidential, Submission FV 77, 2 June 2010.

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

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

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

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

[339] Consultation Paper, Question 6–9.

[340] ‘The police often require the alleged perpetrator to vacate the home and defendants are unable to return until the order is changed later at court’: National Legal Aid, Submission FV 232, 15 July 2010.

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

[342] National Legal Aid, Submission FV 232, 15 July 2010. In consultation, the Northern Territory Legal Aid Commission also expressed the view that the presumption is not being abused and that magistrates generally will not entertain applications for exclusion in the absence of solid evidence: Northern Territory Legal Aid Commission, Consultation, Darwin, 26 May 2010.

[343] National Legal Aid, Submission FV 232, 15 July 2010; Confidential, Submission FV 89, 3 June 2010.

[344] The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010.

[345] Consultation Paper, Question 6–10.

[346] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; T McLean, Submission FV 204, 28 June 2010; Women’s Legal Services NSW, Submission FV 182, 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 162, 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; Confidential, Submission FV 128, 22 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 81, 2 June 2010; Confidential, Submission FV 77, 2 June 2010; C Pragnell, Submission FV 70, 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. One stakeholder submitted such a presumption should be rebuttable: Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[347] Legal Aid NSW, Submission FV 219, 1 July 2010; Law Society of New South Wales, Submission FV 205, 30 June 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; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010. See also Queensland Law Society, Submission FV 178, 25 June 2010.

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

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

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

[351] Berry Street Inc, Submission FV 163, 25 June 2010.

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

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

[354] National Legal Aid, Submission FV 232, 15 July 2010; Victorian Government, Submission FV 120, 15 June 2010. See also Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[355] NSW Women’s Refuge Movement Working Party Inc, Submission FV 188, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; Confidential, Submission FV 96, 2 June 2010.

[356] Confidential, Submission FV 164, 25 June 2010. The Victorian Government also expressed the view that ‘there are instances where it is not appropriate for victims to remain at an address known’ to the aggressor: Victorian Government, Submission FV 120, 15 June 2010.

[357] No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

[358] Confidential, Submission FV 184, 25 June 2010.

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

[360] Ibid.

[361] No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

[362] NSW Women’s Refuge Movement Working Party Inc, Submission FV 188, 25 June 2010.

[363] 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.

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

[365] Confidential, Submission FV 77, 2 June 2010.

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

[367] See Ch 7.

[368] Australian Government Solicitor, Domestic Violence Laws in Australia (2009), 147.

[369] This approach is consistent with Australian Law Reform Commission, Domestic Violence, Report 30 (1986), [100], Rec 14.

[370] Integrated responses are discussed in Ch 29.

[371] Personal property directions are discussed in Ch 16.

[372] In Ch 29, the Commissions recommend that governments prioritise the provision of, and access to, culturally appropriate victim support services for victims of family violence: Rec 29–3.

[373] Australian Government Solicitor, Domestic Violence Laws in Australia (2009), 31.

[374]Domestic Violence and Protection Orders Act 2008 (ACT) s 89.

[375]Restraining Orders Act 1997 (WA) ss 8(1)(i), 30E(3).

[376]Family Violence Protection Act 2008 (Vic) s 129.

[377] Ibid s 130.

[378]Domestic and Family Violence Act 2007 (NT) s 24.

[379]Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 13.

[380]Domestic and Family Violence Protection Act 1989 (Qld) s 25; Family Violence Act 2004 (Tas) s 16(2).

[381]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 35.

[382] Magistrates’ Court of Victoria, Information for Application for an Intervention Order (2009) <www.magistratescourt.vic.gov.au> at 2 February 2010.

[383] In South Australia ‘intervention program’ means a program that provides supervised: treatment, rehabilitation, behaviour management, access to support services; or a combination of the above: Criminal Law (Sentencing) Act 1988 (SA) s 3.

[384]Crimes (Sentencing Procedure) Act 1999 (NSW) s 11; Criminal Law (Sentencing) Act 1988 (SA) s 19B (the latter Act allows the court discretion to adjourn proceedings for a period exceeding the usual maximum of 12 months).

[385]Sentencing Act 1997 (Tas) s 7(ea). ‘Rehabilitation program order’ means an order to attend and participate in a rehabilitation program and in doing so comply with the reasonable directions of a person employed or engaged to conduct such a program: s 4.

[386]Family Violence Act 2004 (Tas) s 13(b).

[387]Sentencing Act 1995 (NT) ss 3, 34.

[388]Domestic and Family Violence Act 2007 (NT) s 24.

[389]Crimes (Sentencing) Act 2005 (ACT) s 13(3)(c). See also pt 6.2.

[390] Ibid s 13(3)(g).

[391] Ibid s 13(3).

[392]Criminal Law (Sentencing) Act 1988 (SA) s 42(1)(da).

[393] Ibid s 10.

[394]Crimes (Sentencing Procedure) Act 1999 (NSW) s 95A. Intervention programs are defined in the Criminal Procedure Act 1986 (NSW) s 346.

[395]Crimes (Sentencing Procedure) Act 1999 (NSW) ss 95(c), 95A.

[396] Sentencing Advisory Council, Sentencing Practices for Breach of Family Violence Intervention Orders: Final Report (2009), Ch 4.

[397] Ibid, 75.

[398] Ibid, Rec 1.1.

[399] Ibid, Rec 1.2.

[400] Victorian Government, Submission FV 120, 15 June 2010.

[401] Consultation Paper, Proposal 6–10.

[402] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; National Legal Aid, Submission FV 232, 15 July 2010; National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; Inner City Legal Centre and The Safe Relationships Project, Submission FV 192, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 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; Confidential, Submission FV 164, 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; 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; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 128, 22 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 96, 2 June 2010; Confidential, Submission FV 81, 2 June 2010; Hunter Women’s Centre, Submission FV 79, 1 June 2010; Confidential, Submission FV 77, 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.

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

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

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

[406] North Australian Aboriginal Justice Agency, Submission FV 194, 25 June 2010.

[407] National Legal Aid, Submission FV 232, 15 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Confidential, Submission FV 105, 6 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[408] Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[409] Confidential, Submission FV 105, 6 June 2010.

[410] National Legal Aid, Submission FV 232, 15 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Confidential, Submission FV 164, 25 June 2010. See also Local Court of NSW, Submission FV 101, 4 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010. Though one legal service provider submitted that in the Northern Territory such orders can be made only with the consent of the ‘defendant’, and this consent is rarely obtained and so ‘an opportunity for behavioural change, reduced offending and reduced imprisonment is forgone’: The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010.

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

[412] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[413] No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

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

[415] Legal Aid NSW, Submission FV 219, 1 July 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010.

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

[417] Ibid.

[418] T McLean, Submission FV 204, 28 June 2010.

[419] Hunter Women’s Centre, Submission FV 79, 1 June 2010.

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

[421] Ibid.

[422] Ibid.

[423] No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010; Local Court of NSW, Submission FV 101, 4 June 2010.

[424] National Legal Aid, Submission FV 232, 15 July 2010; Local Court of NSW, Submission FV 101, 4 June 2010. See also Law Society of New South Wales, Submission FV 205, 30 June 2010.

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

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

[427] T McLean, Submission FV 204, 28 June 2010. See also No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

[428] R Smith, Submission FV 135, 22 June 2010; One in Three Campaign, Submission FV 35, 12 May 2010.

[429] T McLean, Submission FV 204, 28 June 2010.

[430] Confidential, Submission FV 184, 25 June 2010; No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

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

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

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

[434] Hunter Women’s Centre, Submission FV 79, 1 June 2010. See also Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010.

[435] North Australian Aboriginal Justice Agency, Submission FV 194, 25 June 2010.

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

[437] National Legal Aid, Submission FV 232, 15 July 2010; North Australian Aboriginal Justice Agency, Submission FV 194, 25 June 2010.

[438] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010. See also Berry Street Inc, Submission FV 163, 25 June 2010.

[439] Berry Street Inc, Submission FV 163, 25 June 2010.

[440] Ibid.

[441] No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

[442] Legal Aid NSW, Submission FV 219, 1 July 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[443] No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

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

[445] No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

[446] Ibid.

[447] T McLean, Submission FV 204, 28 June 2010.

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

[449] Consultation Paper, Proposal 6–11.

[450] Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Inner City Legal Centre and The Safe Relationships Project, Submission FV 192, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 183, 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; Confidential, Submission FV 164, 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; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 128, 22 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 81, 2 June 2010; Confidential, Submission FV 77, 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.

[451] Inner City Legal Centre and The Safe Relationships Project, Submission FV 192, 25 June 2010.

[452] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

[453] No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

[454] Ibid.

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

[456] Consultation Paper, Question 6–11.

[457] Local Court of NSW, Submission FV 101, 4 June 2010. See also National Legal Aid, Submission FV 232, 15 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[458] Confidential, Submission FV 81, 2 June 2010.

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

[460] National Legal Aid, Submission FV 232, 15 July 2010; Queensland Law Society, Submission FV 178, 25 June 2010.

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

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

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

[464] National Legal Aid, Submission FV 232, 15 July 2010. This submission also noted that such conditions can be imposed as part of sentencing.

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

[466] Consultation Paper, Question 6–12.

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

[468] Justice for Children, Submission FV 148, 24 June 2010.

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

[470] Confidential, Submission FV 198, 25 June 2010. It was submitted that Aboriginal Legal Aid should be given more funding.

[471] Australian Law Reform Commission, Domestic Violence, Report 30 (1986), 55.

[472] Australian Government Solicitor, Domestic Violence Laws in Australia (2009), 161. See also L Laing, Responding to Men Who Perpetrate Domestic Violence: Controversies, Interventions and Challenges (2002), Australian Domestic & Family Violence Clearinghouse; K Wilcox, Recent Innovations in Australian Protection Order Law: A Comparative Discussion (2010), prepared for the Australian Domestic and Family Violence Clearinghouse, 12 (citations omitted).

[473] Discussed in Ch 31.

[474] See, eg, Sentencing Advisory Council, Sentencing Practices for Breach of Family Violence Intervention Orders: Final Report (2009), Ch 4.

[475] M Yeats, Correspondence, 23 December 2009.

[476] Integrated responses are discussed in Ch 29.

[477] This is the case, for example, in Victoria with respect to failure to attend counselling—which attracts a fine of 10 penalty units, compared with the maximum fine of 240 penalty units for breaching a protection order: Family Violence Protection Act 2008 (Vic) ss 37, 123, 130(4).

[478]Penalties and Sentences Act 1992 (Qld) ss 43B, 43C.

[479] This provision is noted above in the section on making protection orders in criminal proceedings. Non-association orders are available in NSW as a sentencing option for any offence punishable by imprisonment for six months or more: Crimes (Sentencing Procedure) Act 1999 (NSW) s 17A.

[480] Ibid s 17A; Sentencing Act 1997 (Tas) s 70.

[481]Crimes (Sentencing Procedure) Act 1999 (NSW) s 17A(2).

[482] Consultation Paper, Question 6–14.

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

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

[485] Justice for Children, Submission FV 148, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; Confidential, Submission FV 77, 2 June 2010.

[486] Local Court of NSW, Submission FV 101, 4 June 2010. See also Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

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

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

[489] See Ch 30.

[490] G Zdenkowski, Consultation, Sydney, 6 November 2009.

[491] M Yeats, Correspondence, 23 December 2009.

[492] Australian Domestic & Family Violence Clearinghouse, Consultation, Sydney, 27 January 2010.

[493] Consultation Paper, Question 6–13.

[494] Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Confidential, Submission FV 162, 25 June 2010; Confidential, Submission FV 109, 8 June 2010; Confidential, Submission FV 77, 2 June 2010.

[495] Confidential, Submission FV 162, 25 June 2010; Confidential, Submission FV 109, 8 June 2010; Confidential, Submission FV 77, 2 June 2010.

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

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

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

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

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

[501] Confidential, Submission FV 130, 21 June 2010; C Pragnell, Submission FV 70, 2 June 2010.

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

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

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

[505] Consultation Paper, Proposal 6–12.

[506] National Legal Aid, Submission FV 232, 15 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 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; 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; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 77, 2 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.

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

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

[509] Law Society of New South Wales, Submission FV 205, 30 June 2010. See also Confidential, Submission FV 198, 25 June 2010.

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

[511] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), 192–196, Rec 6–1.

[512] See Rec 31–2.

[513] The Commissions discuss their views on aggravating and mitigating factors in Ch 13.