Family violence orders: a double-edged sword
In an era where police are increasingly vigilant of domestic violence (now referred to as “family violence”), and the media bleat statistics of intimate partner violence causing more deaths than any other risk factor for women aged 25 – 44, family violence orders are increasingly easy for complainants to obtain, and increasingly difficult for accused partners to dispute.
Whilst family violence is a pressing community concern, the bar for a complainant to obtain an interim family violence order without a contested hearing is extremely low. Pursuant to section 21 of the Family Violence Act 2016 (ACT), a court may make an interim order if satisfied that the order is necessary to protect a person from family violence, or to prevent substantial damage to the complainant’s property. The definition of “family violence” is extremely broad, and includes even seemingly minor inconveniences such as repeated phone calls, emails, text messages, or withholding personal property. There is no testing of evidence at any stage of determining an interim application for family violence orders, meaning that allegations of family violence can be made by a complainant, regardless of whether they are factually correct. Often, interim orders are made with an extremely thin basis for doing so.
Once an interim order is made (often in your absence), breaching a family violence order is a criminal offence for which you may be charged. The maximum penalty for breaching a family violence order is 5 years imprisonment, a fine up to $75,000.00, or both. Often, the conditions of a family violence order are extremely easy to breach, such as a Facebook message to that person, sending them a birthday card or flowers, or being within 100 metres of their person. A complainant’s behaviour will sometimes tempt accused persons to breach the very orders made against them. For example, if the complainant sends you a text message and you respond, you will likely be in breach of the family violence order and at risk of a criminal charge, despite them having messaged you first.
On that basis, family violence orders have become the weapon of choice for vengeful ex-partners who want to stick a figurative knife in the back of their former spouse, or as a means of bad-mouthing their former partner in ongoing family law proceedings.
What many complaints often fail to realise is that family violence and protection orders cut both ways. For example, if an interim family violence order is made preventing you from contacting your former spouse, they cannot continue to keep contacting you. Similarly, if an interim order is made for you to remain at least 100 metres away from your former partner, they cannot proceed to run up to you and then claim you have breached the orders. This is called “aiding and abetting” a breach of a family violence order, and may be charged as a criminal offence.
In 2016 in the Australian Capital Territory, a woman applied for a family violence order protecting her from her former partner after allegations of an assault upon her. She then proceeded to visit her former partner in prison, made approximately 9 phone calls to him, and invited him to live with her. The woman was convicted of aiding and abetting a breach, and a good behaviour order imposed for 12 months.
It worthwhile to note, a complainant aiding and abetting a breach of a family violence order is not an offence in New South Wales, Queensland, South Australia, Victoria or Western Australia. Only the Australian Capital Territory, the Northern Territory and Tasmania fail to specifically exclude the power for an alleged victim to be charged with aiding and abetting the commission of a breach.
Accused persons should be aware of the double-edged nature of family violence orders, and that they are protected against unfair or manufactured accusations of a breach. Where such behaviour does occur, an accused person should consider reporting the aiding and abetting to police as soon as practicable.
It is vital for complainants to recognise their compliance with family violence orders is a fundamental requirement of the system of protection set up by the Family Violence Act 2016 (ACT). Without genuine complainants respecting the operation of protection orders, the effectiveness of the system is entirely undermined. Orders should only be sought by victims who genuinely need them, as opposed to a device designed for leverage or revenge.
The team at Aulich Criminal Law have significant experience dealing with overzealous complainants and resolving charges of breaching family violence orders. If you require advice in relation to a family violence order, or have been charged with a breach, our team will be able to advise you of the best course of action.
 Australian Institute of Health and Welfare, “Family, domestic and sexual violence in Australia”, 28 February 2018, accessed on 31 October 2018 at <https://www.aihw.gov.au/getmedia/d1a8d479-a39a-48c1-bbe2-4b27c7a321e0/aihw-fdv-02.pdf.aspx?inline=true>.