Since the legislative changes on 1 July 2017, parties to FVRO proceedings have the option available to them of entering into a Conduct Agreement, if they consider it to be the right option for them, in all the circumstances.
A Conduct Agreement can be made where there is agreement between the parties which imposes restraints on the lawful activities and behaviour of the Respondent, as the Court considers appropriate, to prevent the Respondent committing family violence against the Applicant or if the person seeking to be protected is a child, exposing the child to family violence committed by the Respondent, or behaving in a manner that could reasonably be expected to cause the Applicant to apprehend that they will have family violence committed against them.
The term exposed to family violence (or personal violence) is defined as being if the child sees or hears the violence or otherwise experiences the effects of the violence. Examples of where are child is exposed are where a child may overhear a death threat, where a child is witness to an assault and other such examples outlined above.
A Conduct Agreement can seek to restrain the Respondent from doing all or any of the following:
- Being on, or near, the premises where the person seeking to be protected lives or works;
- Being on, or near, specified premises or in a specified locality or place;
- Approaching within a specified distance of the person seeking to be protected;
- Stalking or cyber stalking the person seeking to be protected;
- Communicating, or attempting to communicate (by whatever means) with the person seeking to be protected;
- Preventing the person seeking to be protected from obtaining and using personal property reasonably needed by the person seeking to be protected, even if the Respondent is the owner of, or has a right to be in possession of, the property;
- Distributing or publishing, or threatening to distribute or publish, intimate personal images of the person seeking to be protected;
Causing or allowing another person to engage in conduct of a type referred to above.
A Conduct Agreement is not an FVRO, but is taken to be an FVRO for the purposes of the Act. The Conduct Agreement can inform the Respondent that acting in contravention of the Conduct Agreement is unlawful.
A key difference between a Conduct Agreement and an Undertaking is that the Conduct Agreement is enforceable, with the same breach and enforcement processes as an FVRO.
Some advantages, when considering a Conduct Agreement, are:
- The Conduct Agreement Order is made by the Court without being satisfied that there are grounds for making an FVRO in the same terms, meaning that the evidence is not tested at a final order hearing.
- The Conduct Agreement Order is enforceable, with the same breach and enforcement processes as an FVRO.
- The parties do not incur the emotional distress and financial burden of having to prepare for an appear at a final order hearing.
- The Court has the power to order a Respondent
Of course, the safety of an individual is paramount and no person should enter into a Conduct Agreement unless they consider that a Conduct Agreement Order will make them feel safe and sufficiently protected.
The changes to the legislation surrounding restraining orders are complex and can be confusing. If you would like further information or advice in relation to restraining orders, please contact the team at Butlers Lawyers.