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COVID-19: A catalyst for overdue change in the Courts

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As restrictions are eased one step further, it is becoming clear that the recent pandemic and the associated quarantine will have lasting effects.

In a majority of cases, those effects are, and will be, undoubtedly negative. It heartening to take note of the few areas where the pandemic has resulted in a lasting and positive change. In a Family Law context, one such area is the process for making Applications for Family Violence Restraining Orders (“FRVOs”).

Recent changes to the process, brought about by the need to facilitate social distancing, will assist victims of family violence in accessing legal protection from their abusers.

Applications prior to the change

Until recently, victims of family violence were required to make Applications for FVROs by completing the necessary paperwork in person, at a Court.

The only exception to this requirement was where the FVRO was required urgently, or where it was not practical for a person to make the Application in person. In these circumstances, the Application could be made over the phone with a police officer.

Applications could be made at multiple Courts. If the Application was being made by a child, or to restrain a child, it could be made at the Children’s Court. In most other cases, it was necessary to make the Application at a Registry of the Magistrate’s Court, which has 5 locations in the Perth Metropolitan region.

Of the multiple Court locations available to FVRO Applicants, only one (the Central Law Courts Registry of the Magistrate’s Court, located at 501 Hay Street, Perth) was commonly able to list the initial Hearing of the FVRO Application on the same day. This is still the case.

Given that FVRO Applicants are usually required to attend the initial Hearing for the Application to proceed, the resulting effect was that many victims of family violence were required to make at least two trips to a Court to receive continuing protection from their abusers.

Issues with personal attendance to make FVRO Applications

For victims of family violence, attending a Court can present a significant hurdle.

Victims who are still residing with their abuser may be required to invent excuses to travel, more than once, without their abuser accompanying them. Victims who lived regionally, or lacked their own transport, would have faced additional difficulties attending Court.

The prospect of attending a Court is intimidating for most people. For victims of family violence, particularly those suffering from trauma, it is conceivable that the prospect could be so intimidating, or practically difficult, that they declined to apply for an FVRO.  

The issues above were readily apparent prior to the pandemic. Between December 2018 and June 2019, the Department of Communities (“Department”) undertook consultation to inform the State Government’s principles and goals in producing a 10 Year Strategy for Reducing Family and Domestic Violence (“the Strategy”).

Although the Strategy has not been released, the consultation paper published by the Department identified promoting victim safety as a key goal of the Strategy, which was already being promoted by the State Government enacting measures which “make it easier and less traumatic to obtain a family violence restraining order”. The consultation paper did not specify what those measures were, or whether they involved plans to permit an FVRO Application to be made online, despite the availability of online Applications in other Courts at the time.

Whatever the prior status of any planned changes to the process for making FVRO Applications, the pandemic brought a new sense of urgency to the area. In May 2020, online FVRO Applications were made available.

The new process for Applications

FVRO Applications can now be made online, through legal service providers that have been approved by the Department of Justice. Currently, the approved legal service providers include Legal Aid WA, the Aboriginal Family Law Services and a number of Community Legal Centres.

The change also extends to Violence Restraining Orders, which are another type of Restraining Order, although not to Misconduct Restraining Orders. If you would like to learn more about the differences between the various types of Restraining Orders, see our previous articles.

As before, there is no cost associated with making Applications for FVRO’s, and no financial means testing applies to Applications made through Legal Aid WA. Community Legal Centers may impose their own costs and means testing processes. 

Online Applicants will be required to provide the information necessary to make their Application to the legal service provider by telephone. The legal service provider will confirm with the Applicant that the information they have provided is true, and then forward the Application to the relevant Court and provide a copy to the Applicant. The information provided is treated the same way as an Affidavit made by the Applicant, and can be relied upon by the Court as evidence. Applicants can also provide documentary evidence to the legal service provider, which can be attached to their Application.

Once the Application has been made, the process for receiving an FVRO is largely unchanged. The Court will list a date for the initial Hearing of the Application, where the Court will make a decision whether to grant an interim FVRO.

As above, whether an FVRO Application is made online or in person, an Applicant is usually required to attend the initial Hearing.

Previously, Applicants for FVRO’s could arrange to attend the initial Hearing by telephone or by video conferencing if they were anxious about attending Court, or otherwise unable to attend, for example due to childcare commitments. The online Application process permits Applicants to nominate whether they would like to attend the initial Hearing by telephone or by video conferencing, and their preferred date and Court Registry to hear the Application.

The changes to the Application process for FVRO’s represent a significant advance in assisting vicitms of family violence to access the protections afforded by the law. Although it was previously well known that attending a Court presented difficulty for victims of family violence, the previous Application process required victims to attend Court on at least one occasion, and frequently on more than one occasion. The online process for Applications has, for some Applicants, removed the need to attend Court altogether.

If you require legal assistance in relation to an FVRO, please contact our experienced team at Butlers.

To access information and resources which can assist victims of family violence, please visit Your Toolkit.

 

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Monday, 08 March 2021

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