HHG Legal Group’s Criminal Law team’s Siobhan Nims provides a detailed update on the changes to the law around family and domestic violence, made in response to the COVID-19 pandemic.
Important changes have been made to the way the law deals with allegations of family and domestic violence (FDV) in light of the COVID-19 pandemic. The changes impact the way the courts deal with granting people bail, sentencing them for FDV offences and the way Restraining Orders will work.
The Family Violence Legislation Reform (COVID-19 Response) Bill 2020 passed both houses of parliament on 2 April 2020. The changes in that Bill are expected to come into force shortly.
What changes will be made to Family Violence Restraining Orders (FVROs)?
Applying for an FVRO
Some of the changes made to the FVRO will include practical changes that accommodate ‘lockdown’ conditions and self-isolation requirements. For example, restraining orders can now be lodged electronically. Applicants may not have to necessarily attend at the courthouse in person to make their application. Previously, applications generally have had to be made in person with the applicant physically present at the courthouse.
It has long been the case that if an initial interim FVRO application is successful, the FVRO will not be in force and provide any protection until the other person is served with it. The effect of this has been that those seeking protection under an FVRO don’t know when they are protected because they are not automatically alerted about when the FVRO has been served. However, the measures in the recent amendments ensure that the person seeking to be protected by the FVRO is informed that service on the other party has been carried out – and that they are protected – “as soon as practicable” after that has occurred.
The new amendments also give the Court much more flexibility to deal with people they suspect of deliberately avoiding service. If you are a person bound that means you may be taken to know about the terms you must comply with, and the things you can’t do under the FVRO, even if you haven’t been personally served with the usual paperwork. That may potentially make it easier for a person bound to end up breaching the terms of a FVRO if there is lack of clarity (or memory!) around what the terms are.
The changes also mean that it will be easier for an FVRO to be made against a person convicted of certain offences at the time of the criminal proceedings, without the need for the alleged victim to be present or to make any FVRO application through the civil system. In addition, the Children’s Court and Family Court of WA will be given greater scope to make FVRO’s against parties in a broader range of circumstances.
Breaches of FVRO’s, VRO’s, Conduct Agreement Orders and Police Orders
Anyone who breaches a FVRO, VRO, Conduct Agreement Order or Police Order now faces substantially tougher penalties. The maximum penalty will increase from 2 years’ imprisonment and/or a $6,000 fine, to 2 years’ imprisonment and a $10,000 fine. Where the maximum penalty is increased, sentences across the board – even for more trivial examples of the offence – will generally firm up and become less lenient.
Changes to the law also mean that the courts can make people accused or convicted of domestic violence related offences use electronic monitoring equipment (e.g. ankle bracelets). That equipment will allow authorities to track those sentenced or on bail for an FDV offence, in a substantially wider range of circumstances than has previously been permitted in this State. This represents a very significant change for anyone the subject of domestic violence related allegations or convictions. Again, it emphasises the increased seriousness with which courts deal with allegations or findings of that nature.
Any person bound or respondent considering resolving their FVRO by way of a Conduct Agreement Order would be well advised to ensure that they obtain quality legal advice as soon as possible. It is now even more crucial that any Conduct Agreement is drafted in such a way that the terms are workable, practical and able to be complied with. The consequences for breach otherwise will be severe.
Likewise, with the risk of heavier penalties, the importance of having a lawyer who understands the new changes and who can persuasively and thoroughly outline the full context of any breach, and why particular penalties may not be necessary or appropriate, cannot be understated.
Police are now are also given an extra 12 months (i.e. up to two years after the offence) to prosecute breaches of an FVRO, VRO, Police Order or Conduct Agreement Order.
HHG Legal Group can assist
If you are considering applying for an FVRO, or are aware that an FVRO is sought against you or have been charged with a domestic violence-related offence, it is extremely important that you seek advice immediately from an experienced criminal law team familiar with the new changes to the law.
For over 100 years HHG Legal Group has been proudly serving Western Australian families, business and individuals. Never before has the State seen such a crippling time for many small businesses and individuals and we are committed to supporting the communities in which we operate. If you require advice or representation in relation to filing or defending a FVRO, we are offering unprecedented fees for initial consultations (video, phone or safely-spaced, face-to-face). If you require some assistance please book a community-priced consultation via the button below or call us on 1800 609 945 we’ll call you back.Book a 1-hour Consultation for $220