WARPING THE PROCESS AND CAUSING

GREATER CONFUSION
LAW ON THE LOUNGE BALI 2 June 2013
Marty Kavanagh
2

VIOLENCE RESTRAINING ORDERS: A FEW THINGS WORTH KNOWING

INTRODUCTION Violence Restraining Orders are important in Family Law for many reasons but particularly in the context of Section 68Q(1) of the Family Law Act 1975(Cth):3
(1) To the extent to which: (a) an order or injunction mentioned in paragraph 68P(1)(a) is made or granted that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; and (b) the order or injunction is inconsistent with an existing family violence order; the family violence order is invalid.

VROs are also important in the context of the 2012 changes to the definitions of Abuse4 and Family Violence,5 issues which were addressed in the writers paper to the Bali Conference in 2012.6 The s 4(1)(c) definition of Child Abuse7 speaks of exposure to Family Violence:8
Causing the child to suffer serious psychological harm, including (but not limited to) when the harm is caused by the child being subjected to, or exposed to, family violence;

The question of whether a party to family law proceedings is protected or bound by a restraining order, whether a child is protected by a VRO and whether the VRO is interim or final may be very important in the Family Courts determination of matters especially in the context of the primary consideration in s 60CC(2). The last 12 months have seen some legislative changes in the Restraining Orders Act 1997 (the Act) and cases which the writer believes may be of some interest to delegates. Whilst this paper focuses on the WA legislation, it is hoped that the issues arising will also be of interest to conference delegates not practising in Western Australia. 1 Hon Michael Minschin Hansard, Legislative Council Second Reading Restraining Orders Amendment Bill 30 August 2011, p6300-6314a (page 4). 2 Marty Kavanagh, Principal, Kavanagh Lawyers WA. 3 See corresponding section in Family Court Act 1997 WA s 175(1). 4 Family Law Act 1975 (Cth) S 4(1) (definition of Abuse). 5 Family Law Act 1975 (Cth) S 4(AB) (definition of Family Violence).
6

Kavanagh, Marty Protection Over Promotion: The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, Bali Law Conference 2012. 7 Family Law Act 1975 (Cth) S 4(1)(c) (definition of Child Abuse).
8 Family Law Act 1975 (Cth) S 4(AB)(1) (definition of Family Violence).

VRO STATISTICS

The writer is very grateful to Mr Tom Millward, from the WA Magistrates Court for the following statistics on Western Australian VROs. 9 Lodgments by Year Perhaps surprisingly the overall number of applications lodged for VROs has remained relatively static with only a 4.7% increase over the five year period 2008 to 2012. Considering the general population increase in WA over the same period it is arguably the case the net VROs have decreased.
Jurisdiction Magistrates Court Childrens Court Total 2008 12654 860 13,514 2009 13036 884 13,920 2010 12697 846 13,543 2011 13124 784 13,908 2012 12452 1693 14,145

The large increase in Childrens Court lodgments between 2011 and 2012 is due to recent legislative changes which are discussed below. Outcome of Lodgments
Jurisdiction Outcome Interim Order Final Order Granted, Status Unknown Adjourned or Remanded Dismissed Not Granted Withdrawn Cancelled Other Interim Order Final Order Granted, Status Unknown Adjourned or Remanded Dismissed Not Granted Withdrawn Cancelled Other 2008 8244 329 45 81 3261 205 238 205 46 621 38 6 152 13 14 12 4 2009 8175 382 56 64 3626 309 199 196 29 638 32 1 8 152 12 19 20 2 2010 7954 374 37 106 3493 310 151 246 26 562 22 1 8 198 22 10 21 2 2011 8584 294 24 89 3489 333 134 148 22 557 21 6 151 26 7 14 2 2012 7706 182 18 61 3353 276 148 167 31 1009 25 16 446 22 37 21 10

Magistrates Court

Childrens Court

In may surprise some practitioners that consistently over the period 2008 to 2012 at least one in four VRO applications is dismissed or not granted. Considering most initial applications are heard on an ex parte basis it is perhaps surprising that so many applications fail. 9 Statistics prepared by Prepared by Chetan Jina 30/04/2013 Magistrates Court Perth WA. 2

Even more surprising is the statistic provided to the writer for 2012 that only 9% of all applications result in a final order after a defended hearing.

Jurisdiction Dismissed (MC) Not Granted (MC) Dismissed (CC) Not Granted (CC) Total dismissed or not granted Total % VRO applications dismissed or not granted

2008 3261 205 152 13 3631 13,514 26.8

2009 3626 309 152 12 4099 13,920 29.4

2010 3493 310 198 22 4023 13,543 29.7

2011 3489 333 151 26 3999 13,908 28.7

2012 3353 276 446 22 4097 14,145 28.9

VRO Orders made under Section 63 of the Restraining Orders Act Whilst courts other than the Magistrates Court (including Courts hearing proceedings under the Family Law Act 1975 and the Family Court Act 1997) may make restraining orders pursuant to s 63 of the Act, these courts seem reluctant to do so.
Jurisdiction Magistrates Court Childrens Court 2008 4 1 2009 1 2010 47 1 2011 30 1 2012 19 2

Sentence Rates for Breaches of VRO What is not surprising is the increase in the sentencing rate for breaches of VROs and in light of the WA Governments three strikes policy introduced in 2011 sentence rates are likely to increase. 10 Sentence does not necessarily mean a custodial sentence.
Outcome 2008 2009 Classification Sentenced 3960 4069 Dismissed 443 708 Magistrates Court Other 10 10 Sentence Rate 90% 85% Sentenced 53 53 Dismissed 13 6 Childrens Court Other 16 15 Sentence Rate 65% 72% *Note: The sentence rate is not related to the lodgment data. Jurisdiction 2010 3607 494 2 88% 47 41 5 51% 2011 4619 586 4 89% 41 8 9 71% 2012 4213 277 5 94% 102 14 26 72%

TROUBLE AT MILL: JURISDICTIONAL UNCERTAINTY RE VROs PROTECTING CHILDREN. The 2011 Amendment to the Act Which court (Magistrates Court or Childrens Court) has jurisdiction to make a VRO protecting a child has become a very vexed issue in WA because of the Restraining Orders Amendment Act 2011 (WA), (the Amendment).
10

S 61A Restraining Orders Act 1997 (WA) inserted by No.32 of 2011 s 15.

Prior to the Amendment, the Childrens Court of WA only heard VRO applications if the Respondent, (the alleged perpetrator), was a child. Thus, a child under 18 could only be restrained by order of the Childrens Court. Applications protecting children were made in the Magistrates Court. In the Amendment the legislature sought to permit a child or a specified person acting on the childs behalf to make an application for a VRO to protect a child in the Magistrates Court or the Childrens Court. The Explanatory Memorandum states:11
Additional words in section 25(3)(a) permit a child or a specified person on the childs behalf, to make an application for a VRO in either the Childrens Court or the Magistrates Court.

Good intentions However, whilst the intention was laudable and clear the amending clause is not. Section 25(3) of the amended Restraining Orders Act 1997 (WA) now reads:
25. Application (3) An application for a violence restraining order made in person is to be made in the prescribed form to (a) (b) if the respondent or person seeking to be protected is a child, the Childrens Court; or otherwise, the Magistrates Court.

Two applications/hearings when a child is involved? The effect of s 25(3) appears to be that all applications concerning children are to be heard in the Childrens Court. This is problematic for say a parent who has applied for a VRO against his/her partner in the Magistrates Court who wishes to extend the protection of the VRO to the child - because two applications, in separate courts may be required. Unintentionally, the legislature appears to have conferred exclusive jurisdiction on restraining orders concerning children to the Childrens Court. The proposition that the Childrens Court has exclusive jurisdiction to hear all applications re restraining orders concerning children is lent considerable weight by s 20 of the Childrens Court Act of Western Australia Act 1988 (WA) which reads as follows12:
20. Non-criminal jurisdiction as regards children (1) Subject to this Act, the Court has exclusive jurisdiction to hear and determine all applications made with respect to a child (c) under the Restraining Orders Act 1997 (subject to section 52 of that Act);

Concerns raised by the profession

11 Restraining Orders Amendment Bill 2011, Explanatory Memorandum, Cl 7. 12 Childrens Court of Western Australia Act 1988 (WA). 4

Members of the profession were concerned about the likely effect of the Amendment. Ms Heidi Guldbaek of the Domestic Violence Legal Workers Network in an article in the Law Society of WAs journal Brief detailed the concern as follows13:
In particular, the Network raised concern about amendments to s25(3)(a) which appeared to expressly provide that all childrens matters must be dealt with in the Childrens Court. The Networks concern was that the proposed amendment would see VRO applicants who wish to also have their children protected under the [VRO] order, have to apply separately at two different courts, and if contested, have to undergo two separate trials about virtually the same 14 matter, leading to further re-victimisation.

When the bill was before parliament the Government noted the concerns raised and declared that it was not the intention of the Government to make it overly cumbersome for parents to protect their children. 15 The Government also relied on the Magistrates Court powers to extend VROs to people other than the Applicant (including children) pursuant to section 68 of the Act which states as follows:
68. Orders may be extended to apply to other people (1) (2) When making a restraining order a court may extend the order to operate for the benefit of a person named in the order in addition to the person protected by the order. If an order is so extended the provisions of this Act apply to the named person as if that person were the person protected by the order.

Inconsistent judicial approach However, not all Magistrates in the Magistrates Court are satisfied that they have the power to make VROs protecting children. Mr Michael Hovane of Legal Aid WA16 summarised the current position as follows:
Most Magistrates and Courts are reading s25(3) as being subject to the provisions of s68, so they have no issue with adding children on to a parent's order if there are grounds for the children. However, some Magistrates and Courts are interpreting the law to mean that section 68 is to be read subject to section 25(3), thereby concluding that they have no power at all to make a VRO for the benefit of a child in the Magistrates Court, even under section 68. These Courts are hearing the application for the parent, but refusing to hear an application to add the children and are telling the parents they have to separately make an application for the children to the Children's Court. This is happening with some Magistrates at Joondalup Magistrates Court, Perth Magistrates Court and some country courts.

13

Heidi Guldback, Restraining Order Amendments: Children put at risk when good intentions lead to unintended consequences Law Society of Western Australia Brief, March 2013 at pages 30-31. 14 Heidi Guldback, Restraining Order Amendments: Children put at risk when good intentions lead to unintended consequences Law Society of Western Australia Brief, March 2013 at page 30. 15 Heidi Guldback, Restraining Order Amendments: Children put at risk when good intentions lead to unintended consequences Law Society of Western Australia Brief, March 2013 at page 30. 16 Correspondence from Michael Hovane, Managing Solicitor, Domestic Violence Legal Unit to the writer dated 12 April 2013.

Hansard The Hansard17 record of the Second Reading speech is revealing, but not conclusive. The Hon Giz Watson18 (Green Party) moved that a new subclause (4) be included so to read as follows:
25. Application (3) An application for a violence restraining order made in person is to be made in the prescribed form to (a) (b) (4) if the respondent or person seeking to be protected is a child, the Childrens Court; or otherwise, the Magistrates Court.

Nothing in subsection (3) shall be taken to prevent an application for a violence restraining order from being made in person by a parent or guardian of a child on behalf of that child to the Magistrates Court, unless the respondent is a child, in which case the application is to be made to the Childrens Court.

The Hon Michael Mischin for the Government declined to accept the amendment stating:
The proposed amendment will not really add to the circumstances, except potentially to complicate them. As presently advised, we will not support the amendment. I would certainly have to give it considerably more thought before I would be prepared to accept an amendment in those terms, as it may warp the process and cause 19 greater confusion.

Meaning cannot always be easily discerned in a parliamentary debate. However, what is clear from the Hansard record is that any judicial officer seeking clarification on the statutory intention re sections 25(3) and 68 of the Act is likely to be disappointed. Mr Hovane describes the difficulties experienced by clients in the following terms:
There is definitely direct evidence that clients are being confused, affected and disadvantaged. It is difficult to tally numbers but DVLU, CLCs and Women's Refuges are all able to each give numerous case examples of actual matters where their clients have been affected. I have had a number of clients personally in this situation and can say categorically that it is causing 20 significant problems. The issues in practice include:

17

Hansard, Legislative Council Second Reading Restraining Orders Amendment Bill 30 August 2011, p63006314a (pages 4-6). 18 Hansard, Legislative Council Second Reading Restraining Orders Amendment Bill 30 August 2011, p63006314a (page 4). 19 Hansard, Legislative Council Second Reading Restraining Orders Amendment Bill 30 August 2011, p63006314a (page 4). 20 Correspondence from Michael Hovane, Managing Solicitor, Domestic Violence Legal Unit to the writer dated 12 April 2013.

delays in getting Interim VROs for children due to having to make a separate initial application to the Children's Court, having to do separate additional paperwork, having to wait for a separate Children's Court listing, having to travel to a different location (for PMC/PCC matters, other courts registries are same location) significant duplication of time involved for clients due to having attend 2 lots of proceedings which are often listed for separate dates. This includes having to have 2 separate hearing dates no legal advice or support initially as the Children's Courts are generally not funded or resourced for a VRO duty lawyer service or other legal advice or support services for VROs Additional costs for Legal Aid and privately paying parents by having to fund 2 sets of proceedings and hearings. Blow outs in times for VRO hearing dates in PCC particularly as numbers of additional VROs for children are being set for trial without any commensurate additional judicial or court resources

Unwarping the process and removing confusion The latest update from the Department of the Attorney General is that the Government is planning to introduce an amendment to remedy the problem in May 2013. At the time of writing and absent legislative amendment, the consensus view regarding which court has jurisdiction to make a VRO protecting a child is as follows: (a) (b) If the Respondent or Applicant is a child and no adult parties are involved the application must be determined in the Childrens Court. If an adult is seeking protection and also seeks to extend that protection to his/her child then the Magistrates Court may determine the matter. However, some judicial officers in the Magistrates Court are refusing the extend VROs to children because they believe the Childrens Court has exclusive jurisdiction. In these circumstances separate applications (and hearings) are required in the Magistrates Court and the Childrens Court.

MORE TROUBLE AT MILL: MENTION HEARINGS Kickett v Starr The appeal point The appeal case of Kickett v Starr21 which was delivered on 15 April 2013 raises interesting questions about whether the listing procedure commonly adopted after an ex-parte VRO hearing is valid. The appeal point in itself was not particularly noteworthy. The Court set aside the Magistrates decision to allow the Respondents application for leave to continue with her application to cancel the VRO. The Court held that the Magistrate at first instance erred in granting the Respondent leave to continue to apply to cancel the VRO against her on the grounds that the VRO was causing her hardship within the meaning of s46(4) (a)(iii) of the Act, which reads as follows:
(4) Subject to subsection (3), at a hearing fixed under subsection (1) the court (a) is to grant leave for the person to continue the application to vary or cancel the order if it is satisfied that

21 Kickett v Starr [2013] WADC 52 7

(iii)

in respect of an application to vary an interim order, there is evidence to support a claim that the restraints imposed by the order are causing the applicant serious and unnecessary hardship and that it is appropriate that the application is heard as a matter of urgency;

The Respondent was seeking leave to cancel a final order. The Court held that leave pursuant to s46(4) (a)(iii) was confined to interim orders only. The decision itself is not particularly surprising or interesting. Obiter re Mention Hearings What is interesting is the obiter of Derrick DCJ in relation to the procedural approach commonly adopted by Magistrates Courts throughout WA after an interim VRO is granted. His Honour noted:22
During the course of the hearing of the appeal I was told by the appellants counsel that the practice of at least the regional magistrates courts in this State in cases such as the present where an interim VRO is made in the absence of the person bound by the order and the person bound by the order indicates he or she objects to the order becoming final, is to list the matter for a mention hearing, to inquire at that mention hearing if the parties have resolved their differences, and if they have not to then list the matter for a final order hearing.

In the writers experience this is also the procedure adopted by many of the metropolitan Magistrates Courts. It is also important to note that Mention Hearings are commonly used by many magistrates as opportunities to explore settlement options. Derrick DCJ commented as follows:
While I can appreciate the pragmatism of this approach, I doubt that it is authorised by the 23 relevant provisions of the Act. if a magistrates court makes a VRO at a hearing fixed under s26(2) [where the Applicant chooses to have an interim hearing in the absence of the Respondent] it seems to me to be strongly arguable that it does not under s29(1) have the 24 power to also adjourn the matter to a mention hearing. However, given that it is not necessary for me to express a definitive conclusion on the point in order to deal with the appeal, and given that I have not heard any detailed submissions on the point, I will refrain from expressing a definitive conclusion in relation to this 25 issue.

22 Kickett v Starr [2013] WADC 52 at par 7. 23 Kickett v Starr [2013] WADC 52 at par 7. 24 Kickett v Starr [2013] WADC 52 at par 7. 25 Kickett v Starr [2013] WADC 52 at par 7. 8

S 29: Ex-Parte Interim Applications To contextualise the remarks of Derrick DCJ it is important to note the text of s 29 of The Act.
29. Order at hearing in absence of respondent (1) Subject to section 27, at a hearing fixed under section 26(2) the court may (a) (b) (c) (d) (2) make a violence restraining order; dismiss the application; adjourn the matter to a mention hearing; or at the request of the applicant, discontinue the application.

If the court adjourns the matter under subsection (1)(c) the registrar is to fix a hearing and summons the respondent to the hearing.

Practical implications If Derrick DCJ is correct there are significant practical implications including but not limited to the following: (a) (b) (c) (d) Where the Court grants an interim VRO pursuant to s 29(1) (absent an application to vary or cancel) the next hearing must be a final order hearing. Ordering a Mention Hearing where an interim VRO has been made unnecessarily delays (without statutory authorisation) a final order hearing. The Mention Hearing listed by the Court in such circumstances is not a Mention Hearings within the meaning of s 3 of the Act. Accordingly, are the orders made by the Court at the so called Mention Hearing pursuant to sections 40 and 41 valid? In particular, if the court makes an order pursuant to section 41(1) finalising an interim order by consent and without admission- does the Court have the power to make such an order?

Consent Orders In relation to (d) above the writers view is as follows: (a) If the court pursuant to s29(1) (c) does no more than adjourn the application to a Mention Hearing then the full powers of the court pursuant to ss 40 and 41 are preserved and any orders made by the court are statutorily authorised. Where the court makes an interim order pursuant to section 29(1)(a) and also adjourns the matter to a mention hearing pursuant to s29(1) (c) then the court may not have the power to make orders pursuant to ss 40 and 41- particularly in relation to making an interim order final by consent.

(b)

The situation could possibly be resolved by simply saying that the second hearing is not a Mention Hearing but a procedural hearing. However, the notices issued by the court Registry specifically say Mention Hearing Only. Also, sections 40 and 41 orders can only be made at a Mention hearing. 9

Change in approach to listings Anecdotal evidence suggests that most interim VROs are now being listed to final hearing without a Mention Hearing, so perhaps Derrick DCJ has effected change without determining the issue. However, many practitioners are of the view that Mention Hearings were very helpful in settling matters by undertaking or Consent and that opportunity may now be lost.

INTIMIDATING, OFFENSIVE CONDUCT Walsh v Baron The facts and the first instance hearing The 23 November 2012 decision in Walsh v Baron,26 whilst a controversial decision (for the media at least) nonetheless offers a very interesting judicial review of what constitutes ongoing intimidating and offensive conduct. The facts of the case were summarised by Staude DCJ. 27
Following the breakup on 19 January 2011 of a 6 month romantic relationship, the appellant sent the respondent a number of offensive SMS messages to which she reacted by applying for on 20 January 2011 and obtaining on 21 January 2011 an interim Violence Restraining 28 Order... Thus began an extraordinary litigation which resulted in extensive interlocutory proceedings and a final VRO hearing which went on for 6 days ..... On the last hearing day the learned Magistrate made a final VRO in the terms of the interim order save that the duration of the final order was for 5 years. Reasons were published on 21 May 2011. Mr Walsh was ordered to pay costs which the learned Magistrate assessed on 26 June 2012 at $33,606.65. [Emphasis added].

Ongoing conduct that is intimidating, offensive or emotionally abusive Many VRO applications (including Walsh v Baron) are founded on intimidatory and offensive conduct pursuant to s 6(1)(d) of the Act which states as follows:
(1) In this Act act of family and domestic violence means one of the following acts that a person commits against another person with whom he or she is in a family and domestic relationship: [d] behaving in an ongoing manner that is intimidating, offensive or emotionally abusive towards the person: [Emphasis added]

The elements of s6(1)(d) The decision provides a useful judicial review of most of the elements of s 6(1)(d). In relation to ongoing Staude DCJ noted:29
26

Walsh v Baron [2012] WADC 162 (23 November 2012). Ibid at para 1.

27 Per Staude DCJ, Walsh v Barron [2012] WADC 162 paras 1-2.
28

29 Ibid at para 19.

10

I have not been taken to any authority on the meaning of 'ongoing manner', but I take 'ongoing' to bear its ordinary and natural adjectival meaning of 'progressive, continuous, current', as opposed to occasional or past. Having regard to the purpose of the legislation, I am of the view that it does not purport to make any behaviour that is offensive, intimidating or emotionally abusive an act of abuse. Clearly, such behaviour may occur occasionally in relation to an intimate relationship without giving rise to a need for a protective court order. Such a construction is consistent with the principle that a VRO is not a punishment for past behaviour. [Emphasis added].

S6(4) confirms that Intimidate has the same meaning as s 338D of the WA Criminal Code as follows:
intimidate, in relation to a person, includes (a) (b) (c) (d) to cause physical or mental harm to the person; to cause apprehension or fear in the person; to prevent the person from doing an act that the person is lawfully entitled to do, or to hinder the person in doing such an act; to compel the person to do an act that the person is lawfully entitled to abstain from doing;

Staude DCJ described the term offensive as hurtful, harmful, injurious rather than merely displeasing, annoying, insulting, disgusting, nauseous.30 Noting that emotionally abusive defied definition by conventional means, it was not necessary for Staude DCJ to define the term as the conduct complained of was categorised as offensive or intimidating. 31 However, subsequent decisions have referred to the definition of emotional abuse in Lydon v Lydon [2008] WASCA 8: Emotional abuse involves improper or inappropriate behaviour, verbal or non-verbal, that adversely impacts upon another persons emotional wellbeing. Emotional abuse improperly excites strong unwelcome feelings in another. Emotional abuse may involve coercion by intimidation, inducing fear, stalking, or harassment, that is words, conduct or action, usually repeated or persistant...... Alleged Acts of Abuse The alleged acts of abuse were summarised as: 32

Numerous abusive text messages. Taunting Ms Baron with the fact the police were not able to serve the interim VRO upon him. Making false allegations of theft and illegal supply of drugs against Ms Baron to AHPRA [the WA nursing authority] Making and pursuing a false allegation of perjury against Ms Baron. Leaving abusive messages on her work voice message service.

30 Ibid at para 17. 31 Ibid at para 18. 32 Ibid at para 25. 11

Falsely representing that he [the Appellant] had obtained a VRO and/or MRO (misconduct restraining order) against Ms Baron. Threatening to sue, then pursuing Ms Baron for monies falsely said to be owed. Causing damage to Ms Barons car and home. Leaving signs that he had visited her property. Leaving in Ms Baron's letterbox a newspaper article with respect to a fire that had caused damage to her property marked with a note defining 'karma'. Making telephone calls to Ms Baron's work number after the VRO had been served.

Lower Courts findings of fact Hogan Ms findings of fact are summarised as follows: 33

After Ms Baron told Mr Walsh she was terminating their relationship he sent a number of text messages which were abusive, threatening and intimidating, and which, though Mr Walsh apologised for them, were followed by further abuse. Mr Walsh left three voice messages on Ms Baron's work telephone, the first indicating that he wished to talk with her, the second alleging that he had taken out a restraining order against Ms Baron and asking for a truce and the third referring to Ms Baron in offensive terms. Contrary to Mr Walsh's evidence, Ms Baron did not make any telephone calls to him between 20 and 24 January 2010. Mr Walsh avoided service of the interim VRO and taunted Ms Baron with that avoidance, finding impliedly that his conduct was intimidatory. Mr Walsh lodged false complaints with AHPRA on 26 and 28 January 2011 that Ms Baron supplied him with prescription medication and surgical cloths stolen from the hospital at which she worked, finding that the complaints were made in order to get even with Ms Baron. Mr Walsh falsely informed Ms Baron that he had taken out a VRO or misconduct restraining order, finding that this was a form of intimidation towards Ms Baron . Mr Walsh did not receive from Ms Baron by post on 31 January 2011 a shirt of his that was cut into pieces, contrary to his evidence. There was no direct evidence that Mr Walsh caused damage to Ms Baron's car on 16 February 2011. (Although her Honour suspected that he or someone acting on his behalf did so, her Honour did not so find.) On 17 February 2012 Mr Walsh lodged a claim against Ms Baron in the Magistrates Court for $225 'as a bargaining chip with respect to the IVRO and as another form of intimidation'.

33 Per Hogan M, Walsh v Barron [2012] WADC 162 at para 27. 12

After a fire in bushland near Ms Baron's property on 5 April 2011 in which her home was damaged Mr Walsh left in her letterbox a copy of a newspaper report of the incident (to which was attached a dictionary definition of 'karma') as a means of intimidation. Mr Walsh attended Ms Baron's home after the fire and re-arranged some pots. In June 2011 Mr Walsh attended Ms Barons home and stole her bicycle. Mr Walsh lodged a false complaint with police that Ms Baron committed perjury in her affidavit supporting her application for a VRO by stating that he had been a member of the Victorian Police and had been diagnosed with bipolar condition, finding that this information had been given to Ms Baron by Mr Walsh. Based on subpoenaed telephone records, three calls were made from Mr Walsh's mobile phone to Ms Baron's work telephone number on 23 March 2011, and from a number registered to his business, two on 17 March 2011, two on 19 March 2011 and one on 4 June 2011, though there was no evidence that Ms Baron answered the calls.

The issue on appeal The question for Staude DCJ was whether the Magistrate at first instance erred in finding that the abovementioned behaviour constituted ongoing intimidating or offensive conduct towards Ms Baron. The outcome of the appeal Staude DCJ allowed the appeal on most grounds with costs and concluded as follows: Mr Walsh's immediate response to Ms Baron's termination of their six-month relationship was undoubtedly disproportionate, offensive and vindictive. The worst of his conduct, being the sending of the offensive texts, was short-lived and regretted by Mr Walsh. It was very distressing to Ms Baron. I have been taken to transcript references to her evidence of her emotional reaction to various things done by Mr Walsh. This evidence, of course, is self-serving by nature, but unavoidably so. It was given great weight by the learned magistrate. Ms Baron may have expected, upon her notifying Mr Walsh by telephone that their relationship was over, that he would simply acquiesce without fuss. But in the context of a relationship as passionate as Ms Baron's pre-19 January 2011 texts and other evidence described it, such an expectation would have been extremely unrealistic.34 The purpose of restraining orders is not to protect people from the emotional fallout of a failed relationship, which may be bitter, spiteful and unpleasant, but to protect them from violence in the form of acts of abuse which, in such a case as this, include behaviour that is progressively and

34 Per Staude DCJ, Walsh v Barron [2012] WADC 162 at para 156. 13

continuously, not occasionally, intimidating, offensive or emotionally abusive. Mr Walsh's proven behaviour does not satisfy that requirement.35 Its worthwhile in the context of the final decision to review His Honours comments re the meaning of Ongoing and offensive. In relation to ongoing Staude DCJ noted:36
I take 'ongoing' to bear its ordinary and natural adjectival meaning of 'progressive, continuous, current', as opposed to occasional or past. ..it does not purport to make any behaviour that is offensive, intimidating or emotionally abusive an act of abuse. Clearly, such behaviour may occur occasionally in relation to an intimate relationship without giving rise to a need for a protective court order. Such a construction is consistent with the principle that a VRO is not a punishment for past behaviour. [Emphasis added].

Staude DCJ described the term offensive as: 37

hurtful, harmful, injurious rather than merely displeasing, annoying, insulting, disgusting, nauseous.

Salient points The decision is interesting on many points including but not limited to the following: (a) Some leading propositions , whilst still good law need to be considered in the context of the 2004 Amendments38: Violence restraining orders are not to be made merely because of general feelings of animosity between the parties or because it seems preferable that contact between the parties might be minimised or prevented per Low v Weber.39 It is not possible to deal with the issue of a restraining order simply on the basis of what is prudent or desirable. Regard must be had to the legal rights of the parties per McWaters v Shirley40. A violence restraining order is not to be made lightly. It stigmatises the respondent as a violent person from whom another person or persons need to be protected by the court and the restraints that may be imposed can significantly curtail the respondent's ordinary freedom per McKenzie v Picken.41 The making of a violence restraining order is a serious step, having serious consequences for the person against whom the order is made McKenzie v Picken.42 35 Ibid at 157. 36 Ibid at 19. 37 Ibid at para 17. 38 Ibid at paras 31-34. 39 See generally Low v Weber [1999] WASCA 274. 40 See generally, McWaters v Shirley WASC 188 at 34. 41 See generally McKenzie v Picken [2002] WASCA 113 at 34. 42 Ibid at 46. 14

Whilst not dismissing these authorities, Staude DCJ nevertheless emphasised that the aforementioned propositions were largely made prior to the Acts Amendment (Family and Domestic Violence Act) 2004 (WA), which introduced a more broadly defined concept of what constituted an act of abuse. In very general terms Staude DCJ noted the pre-2004 statutory requirement for actual or apprehended violence- a requirement that is no longer required today.
The Supreme Court has not had occasion to pronounce upon the effect of the 2004 amendments. In my view the enactment of s 11A and the inclusion within the meaning of 'act of abuse' or an 'act of family and domestic violence' which consists of 'behaving in an ongoing manner that is intimidating, offensive or emotionally abusive' have the effect that actual or apprehended violence (in the ordinary sense of the exercise of 43 physical force to cause injury or damage) is no longer a necessary consideration. Even so, a VRO brands a person on whom it is imposed as an abusive person from whom another requires the protection of the court and may significantly curtail that person's personal freedom. The consequences of breach may be dire. For these reasons it is still the law, in my opinion, that a VRO should not be granted lightly, as Anderson J (with whom Steytler J agreed) held in McKenzie v Picken, as it affects the 44 rights of the person bound.

(b)

Purporting to apply to take out a VRO against the Applicant, threatening defamation proceedings and making bringing a court claim for a debt is not conduct determined as offensive or intimidating. Whilst many of Mr Walshs actions were immature the court did not find that such conduct was offensive or intimidating within the meaning of s 6(1) (d). 45
His subsequent conduct can be clearly seen, on the evidence, to be focussed on the merits of Ms Baron's application for a VRO. By promising to play tit for tat he tried to deter Ms Baron from obtaining an order to which he objected; later, he tried to persuade her to withdraw it. His actions by this stage were retaliatory, rather than offensive or intimidating. Viewed objectively, these particular actions of Mr Walsh were petty and vindictive, but such criticism can be made of the conduct of many litigants. As misguided, disproportionate and unreasonable as they may appear to be, they were lawful means by which Mr Walsh was entitled to express his grievances against Ms Baron. Courts and regulatory agencies deal routinely with doubtful claims. Being on the receiving end of what one may perceive as an unmerited complaint or claim may be unpleasant, but it is a necessary concomitant of the rule of law. Such processes are controlled by courts and regulators according to legislation. It is not open, therefore, to class such actions as acts of abuse. Similarly, it cannot be an act of abuse for a party opposing a 46 VRO application to contest it at the interlocutory stage by legally available means.

(c)

The requirement for ongoing intimidating and offensive conduct is essential

My reading of the text messages as they have been transcribed by Ms Baron leads me to the view that his Honour could not reasonably have concluded from those texts that Mr Walsh had behaved 'in an ongoing manner that was intimidating, offensive or emotionally abusive' (emphasis added) towards Ms Baron at the time of the making of the interim VRO, or, if it were reasonable to so conclude, that one of the necessary

43 Per Staude DCJ, Walsh v Barron [2012] WADC 162 at para 35. 44 Per Staude DCJ, Walsh v Barron [2012] WADC 162 at para 156. 45 Per Staude DCJ, Walsh v Barron [2012] WADC 162 at para 101. 46 Per Staude DCJ, Walsh v Barron [2012] WADC 162 at para 162. 15

pre-conditions for a VRO had been established, that is, either the respondent was likely again to commit such an act, or the applicant reasonably feared that the 47 respondent would commit an act of abuse against her.

(d)

Avoiding service of a VRO not determined as a relevant consideration

(e)

The statutory two year duration of a VRO should not be departed from without good reason.
Although the discretion conferred by s 16(5) is unfettered, the law does not operate arbitrarily. Where the statute specifies a default period there would need to be reasons shown why a higher period is warranted. In this case her Honour has identified some, but not all, of the salient features of the dispute, noting that the parties were in a relationship for six months and that Mr Walsh was unable to let go of his extremely negative feelings towards Ms Baron. Her Honour did not take into account that there were no threats of violence made after the break-up of the relationship, that Mr Walsh had apologised for the conduct for which the interim VRO was obtained, that the litigation of the application had had the effect of perpetuating the animosity of the parties towards each other, and that, by the time of the making of the final order, some 15 months had 48 passed without any prosecution of a breach of the interim order.

It may be argued that Walsh v Barron is merely one appeal decision of limited precedent value. However, when one considers the statistic previously mentioned (that only 9% of all applications in 2012 resulted in a final order after a defended hearing), it is the writers view that Walsh v Barron accurately reflects a general judicial insistence that the elements of a VRO be made out at the final order level. SUMMARY: A FEW THINGS WORTH KNOWING ABOUT VROs 1. The recent statistics on VROs reveal that: Applications for VROs over the period 2008 to 2012 have been relatively static. Consistently, more than 25% of VRO applications are either dismissed or not granted. Sentencing rates for VRO breaches are high and are likely to continue to climb.

2. 3.

The purpose of restraining orders is not to protect people from the emotional fallout of a failed relationship, which may be bitter, spiteful and unpleasant. 49 The purpose of restraining orders is to protect people from violence in the form of acts of abuse which, include behavior that is progressively and

47 Per Staude DCJ, Walsh v Barron [2012] WADC 162 at para 105. 48 Per Staude DCJ, Walsh v Barron [2012] WADC 162 at para 105. 49 See generally discussion on Walsh v Baron [2012] WADC 162 (23 November 2012) 16

continuously, not occasionally, intimidating, offensive, or emotionally abusive.50 4. 5. There is currently no certainty as to which court has jurisdiction (exclusive or otherwise) to make a VRO protecting a child in WA. The consensus view seems to be that: (a) If the Respondent or Applicant is a child and no adult parties are involved the application must be determined in the Childrens Court. (b) If an adult seeking protection also seeks to extend that protection to his/her child then the Magistrates Court may determine the matter. (c) Some judicial officers in the Magistrates Court are refusing the extend VROs to children because they believe the Childrens Court has exclusive jurisdiction. In these circumstances separate applications (and hearings) apply in the Magistrates Court and the Childrens Court. 6. Where the Court grants an interim VRO on an ex-parte basis it is questionable whether the Court has the statutory authorization to also list the matter for a Mention Hearing per Kickett v Starr.51 7. Where the Court grants an interim VRO on an ex-parte basis the next hearing (absent an application to vary or cancel) should most likely be a final order hearing.52 8. Recent listing procedures indicate that the courts are starting to list ex-parte VROs (after the Respondent has objected) directly to final order hearings. 9. In finalizing restraining orders by consent at a Mention Hearing pursuant to s 41 of the Act consideration needs to be given as to whether the Mention Hearting has been statutorily authorized pursuant to s 29(1).53 10. Leading propositions of law, particularly those detailed in Low v Weber; McWaters v Shirley & McKenzie v Picken are still good law, but need to be considered in the context of the pre-2004 amendments which required apprehended violence as a pre-condition for the granting of a VRO.54 11. Purporting to apply to take out a VRO against the Applicant, threatening defamation proceedings or making bringing a court claim for a debt were not determined as offensive or intimidating conduct.55 50 Ibid. 51 See generally Kickett v Starr [2013] WADC 52. 52 Ibid. 53 Ibid. 54 See generally discussion on Walsh v Baron [2012] WADC 162 (23 November 2012) 55 Ibid. 17

12. The requirement for ongoing intimidating and offensive conduct is essential. Ongoing means progressive, continuous and current. Any intimidating and offensive conduct in a relationship does not necessarily constitute an act of abuse. A VRO is not punishment for past behavior.56 13. Behaving in an offensive manner means: hurtful, harmful and injurious rather than merely displeasing, annoying, insulting, disgusting, nauseous.57 14. The statutory 2 year duration of a VRO should not be departed from without good reason.58

56 Ibid. 57 Ibid. 58 Ibid. 18