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Domestic violence laws in Australia

2. Exclusion orders

3.2.1. In cases where violence has occurred or is threatened between persons who live together, it may be necessary or appropriate for the perpetrator of the violence or threatened violence to be excluded from the home. Laws dealing with domestic violence in every Australian State and Territory, and in New Zealand, allow a court to make a protection order that includes a prohibition having that effect. For the purposes of this Report, such orders are referred to as ‘exclusion orders’.139

3.2.2. In all Australian States and Territories, the relevant legislation does not make provision for free-standing exclusion orders. Rather, a court can include in a domestic violence protection order (or similar) conditions or prohibitions having the effect of excluding the respondent from a residence shared with the protected person.140 Thus, when we refer to an ‘exclusion order’ made under State or Territory domestic violence protection orders legislation, we mean a protection order that includes such a condition or prohibition. We also refer to an ‘exclusion condition’, being a condition or prohibition in a protection order having the effect of excluding the respondent from his or her home, (where the respondent and the protected person normally cohabit).

3.2.3. We note that the position in New Zealand is different in that, under the relevant New Zealand legislation, a person can apply for a free-standing occupation or tenancy order, without necessarily also seeking a protection order.141

3.2.4. Although exclusion orders are available nation-wide, there are some differences in the approach taken in each jurisdiction. In particular, in some jurisdictions special rules apply to the making of exclusion orders, whereas in others there are no such special rules. In addition, there is significant variation between jurisdictions in terms of the factors courts are required to take into account when making exclusion orders, and the impact of exclusion orders on the parties’ legal position in relation to residential property (for example, the impact of an order on a residential tenancy).

Key differences between jurisdictions

3.2.5. While some differences in the relevant legislative provisions across jurisdictions are unlikely to have significant consequences in practice, others may have an impact on the effectiveness of such orders. The key differences between the jurisdictions relate to:

Special considerations/requirements when excluding a respondent from his or her place of residence

3.2.6. In the Australian Capital Territory, South Australia, the Northern Territory and Tasmania, the making of exclusion orders is not subject to any mandatory additional considerations or requirements. In these jurisdictions, the grounds on which a protection order can be made, and the matters a court is required to consider when making a protection order, will be the same regardless of whether the order includes an exclusion condition.

3.2.7. In Queensland, Victoria, New South Wales and Western Australia, additional requirements apply when a court is considering making an exclusion order.

Factors that a court is required to consider when making an exclusion order

3.2.8. Courts are generally directed by the relevant State and Territory legislation to have regard to certain specified matters when deciding:

3.2.9. Some generally applicable matters that courts are required to consider when making protection orders may be particularly relevant in the context of exclusion orders, for example:

3.2.10. In certain jurisdictions, courts’ attention is drawn to specific factors to be considered when making exclusion orders, for example:

3.2.11. The summary above only reflects the specific factors to which courts’ attention is drawn by the terms of the legislation. In most cases it would be open to courts to consider other relevant matters in a particular case. In many cases, courts could be expected to consider the specified factors even if the relevant legislation does not expressly direct them to do so. However, the advantage of specifying particular considerations is that it should ensure courts focus on matters considered especially important by the legislature, and that the parties are aware of the particular significance of those matters.

Requirement that courts consider making an exclusion order

3.2.12. In Victoria, a court that is making a Family Violence Intervention Order (FVIO), including an interim FVIO, is required to consider whether the respondent should be excluded from the home.149 If a court decides that it is appropriate to so exclude an (adult) respondent, and the protected person does not oppose this then the court must do so.150

Explicit focus on the needs of persons protected by a protection order

3.2.13. Legislation in several jurisdictions directs courts to pay particular attention to the interests of the protected person when deciding whether to make an exclusion order. Examples include:

3.2.14. These provisions have the effect of focusing courts’ attention on the needs of the people who are to be protected by a protection order, and on what an exclusion order would achieve in terms of their safety and wellbeing, rather than on the impact of an exclusion order on the respondent. This focus is not so clear in other legislation – for example, the Queensland Act provides that a court may attach conditions (including conditions excluding the respondent from the home) to a protection order if the court considers that the conditions are necessary in the circumstances and ‘desirable in the interests of the aggrieved, any named person and the respondent’. 151

Ancillary orders that facilitate access to personal property

3.2.15. Access to personal property may be a significant issue for all parties when an exclusion order is in force. If the respondent is excluded from their home, it is likely that they will need access to their personal effects in order to take up residence elsewhere. Equally, if an exclusion order is to allow a protected person and/or their children to remain in the home, it may be necessary to prevent the excluded party from removing necessary items from the premises. In some cases, quite prescriptive, detailed terms may need to be included in the order setting out what items are to be left at the premises for the use of the protected person and their children.

3.2.16. We note that, if the legislation in a particular jurisdiction does not deal expressly with retrieval of personal property, this does not mean that a court would be unable to attach appropriate conditions to an exclusion order – for example, stipulating that a person is excluded from premises but may return at a certain time to collect specified items.

3.2.17. Legislation in the following jurisdictions specifically provides for the making of an order allowing an excluded person to retrieve items of their property:

3.2.18. Legislation in some jurisdictions also makes express provision with respect to orders specifying that certain items of property must remain at the residence of the protected person. For example, if a person applies for an occupation order or a tenancy order under the New Zealand Act, a court may also make an ancillary furniture order granting to the applicant the use of all or any of the furniture, household appliances, and household effects in the dwelling house specified in the occupation/tenancy order.156 In Victoria, exclusion orders may stipulate that furniture or appliances in the residence that enable the normal running of the home shall remain in the residence.157

3.2.19. In practice, orders allowing a respondent to return to the premises from which they are excluded to collect their belongings may need to be tightly controlled in order to ensure that protected person(s) are not put at risk of violence. Some legislation deals specifically with these issues: see, for example the NT Act, which allows persons to collect personal property from premises from which they are excluded only if they are accompanied by a police officer.158

Presumption in favour of protected persons remaining in the home

3.2.20. Only the NT Act contains an express presumption that the protection of the protected person and any children living with that person is best achieved by them remaining in their home.159 The presumption must be applied by a court or other ‘is suing authority’ (eg. a police officer) making a protection order under that Act.

3.2.21. As a presumption that must be applied by decision-makers, this provision in the NT Act is stronger than the provisions examined above which oblige courts to consider the interests of the protected person and their children when making a protection order. However, the NT Act does not require a court to make an exclusion order when one is sought. Rather, it directs courts to start from the position that the interests of the protected person and their children would be best served by remaining in their home. The court or other issuing authority would of course need to determine whether an exclusion order is appropriate for achieving that outcome consistently with the safety of the protected person and any children living with that person.

Tenancy issues

3.2.22. Exclusion orders can raise particular issues for people who live in rented properties. If the person protected by an order is the sole (legal) tenant of a residential property, then an exclusion order should not affect their tenancy (leaving aside practical questions such as their ability to continue to cover the rent).

3.2.23. However, if a residential property is leased in the joint names of the protected person and the person subject to the exclusion order, or the protected person is not a lessee of the property, then tenancy arrangements can be complicated by an exclusion order. For example, a tenant who is the subject of an exclusion order might seek to end their tenancy agreement, or might simply stop paying rent, thus putting the protected person at risk of eviction.

3.2.24. There is legislation regulating residential tenancies in each State and Territory, and in New Zealand. Generally, power is given to a tribunal or similar authority to vary tenancy arrangements in cases of hardship. In some cases, tenants affected by domestic violence, and particularly by exclusion orders, may be able to seek relief from the relevant tribunal. However, in some jurisdictions the legislation goes further by making explicit links bwetween the rules governing exclusion orders and the rules that apply to tenancies, and providing a mechanism for adjusting or transferring tenancies where exclusion orders are inforce. For example:

Police powers to grant exclusion orders

3.2.25. In some Australian jurisdictions, police have powers to make protection orders that include exclusion conditions.

Issues affecting the practical operation of exclusion orders

3.2.26. In some cases, separating the perpetrator and victims of family violence will be an appropriate means of preventing further abuse. Clearly, there is force in the argument that if the parties can no longer cohabit because of violence perpetrated by one of them, the perpetrator should be obliged to leave the home, rather than the victims of the violence (who may include children).

3.2.27. However, exclusion orders are not necessarily an appropriate solution in every circumstance. While exclusion orders may in some cases be effective in terms of securing the immediate safety of victims of domestic violence, they may not offer lasting solutions to the longer-term difficulties faced by victims. The practical difficulties raised by exclusion orders include those briefly discussed below.

Compliance issues

3.2.28. In many cases, the existence of a protection order does not remove the ongoing risk of further domestic violence, and may even heighten that risk. While many respondents will comply with the terms of a court order, some willnot. Exclusion orders do not, therefore, necessarily ensure the safety of protected persons who remain in their homes.168

3.2.29. In order for an exclusion order to be effective in securing the safety of the protected person and allowing them to remain in their home, the protected person must have some confidence that the respondent will comply with the order and that they will be protected from further violence. If a protected person fears that the respondent will breach an exclusion order and will return to the protected person’s residence, the person may choose to enter a refuge or seek other accommodation. Pilot programs in several Australian jurisdictions have attempted to address these practical issues by providing additional safeguards for protected people who are judged to be at risk despite the terms of an exclusion order, for example, fitting sophisticated alarm systems at premises.169

Housing issues

3.2.30. Remaining in a current residence, with the perpetrator of violence excluded by an exclusion order, may not be a sustainable long-term option for some families. A protected person may not be able to meet the costs of running a household if the respondent to an exclusion order ceases to contribute financially.170

3.2.31. The person who is excluded from their home by an exclusion order may also have pressing accommodation needs, and a court may be reluctant to make an exclusion order unless it can be assured that that person will have access to emergency accommodation. This may be a particular barrier to the making of an exclusion order in rural and remote areas where such accommodation is limited.171

Courts’ willingness to grant exclusion orders

3.2.32. Finally, there is some evidence of a general reluctance on the part of magistrates and judges to make exclusion orders.172 There appears to be little recent data about the frequency with which exclusion orders are granted to people who have experienced domestic violence, and the effectiveness of those orders in allowing victims of violence to remain safely in their homes. However, some research has suggested that magistrates have been reluctant to attach exclusion conditions to domestic violence orders.173 It appears that magistrates have tended to focus on the accommodation needs of the respondent rather than on the safety of protected persons who remain at home without an exclusion order. There may also be concerns about the safety of women and children who remain at home even if they have been granted an exclusion order.174

3.2.33. In many jurisdictions, integrated programs have been implemented to raise awareness about exclusion orders, and to ensure that they are a realistic and safe option for victims of domestic violence. Risk assessment to determine whether an exclusion order is appropriate in a particular case, and additional police and security support for people who obtain exclusion orders, make these orders a more viable option for many applicants.175 However, it is not yet clear that these initiatives, coupled with law reform in many States and Territories to direct courts’ attention to the possibility of excluding a respondent from their home, has resulted in a widespread and significant increase in the proportion of cases in which exclusion orders are made.176

  1. Orders of this kind are also referred to in other literature as ‘ouster orders’ or ‘kick-out orders’.
  2. The 1999 Model Legislation contains a similar provision allowing a court to make an order excluding a person from premises where the protected person lives, even if the respondent has a legal or equitable interest in the property: s 16(2)(b).
  3. See Part 3 of the Act.
  4. NSW Act s 17(2)(c); ACT Act s 47(1)(c); WA Act ss 12(1)(d), 30B(e).
  5. ACT Act s 47(1)(c) WA Act ss 12(1)(c), 30B(d).
  6. ACT Act s 47(1)(f ).
  7. Victorian Act, s 82(1).
  8. NSW Act s 17(2)(a).
  9. Queensland Act, s 25A(3).
  10. Victorian Act s 83.
  11. Victorian Act, s 82(1).
  12. Victorian Act, s 82(4).
  13. Queensland Act, s 25(2) (our emphasis). .
  14. Victorian Act, s 86.
  15. Western Australian Act, s 13(5).
  16. NT Act, s 85.
  17. Queensland Act, s 25A.
  18. New Zealand Act, s 63.
  19. Victorian Act, s 86(b)(i).
  20. NT Act s 85.
  21. NT Act, s 20.
  22. See Victorian Act, Part 16, Division 10.
  23. Tasmanian Act, s 17 and NT Act, s 23.
  24. New Zealand Act, s 58.
  25. Victorian Act, ss 26 and 29(1).
  26. Victorian Act, s 36(1).
  27. Victorian Act, s 36(2).
  28. Tasmanian Act, s 14(1).
  29. Tasmanian Act, s 14(3).
  30. See R Edwards, Staying Home, Leaving Violence (Australian Domestic and Family Violence Clearing House, 2004).
  31. L McFerran, ‘Taking Back the Castle: How Australia is making the home safer for women and children’ (Australian Domestic and Family Violence Clearing House, Issues Paper No 14, 2007).
  32. Domestic violence is associated with both primary and secondary homelessness for women and children, some of which is attributable to the difficulties women face in maintaining housing after separation: see ‘Home Safe Home: The link between domestic and family violence and women’s homelessness’ (Partnerships Against Domestic Violence Report, 2000); Edwards, Staying Home, Leaving Violence, op cit.
  33. McFerran, ‘Taking Back the Castle’, op cit.
  34. R Edwards, Violence Excluded: A Study into exclusion orders South East Sydney (NSW Strategy to Reduce Violence Against Women, NSW Attorney-General’s Department, Sydney 2004); R Field and B Carpenter, ‘Issues relating to Queensland Magistrates Understandings of Domestic Violence’ (Paper presented at the Domestic Violence Court Assistance Network (DVCAN) Conference17-19 June 2003); R Field, B Carpenter and S Currie, ‘Issues for Magistrates in the Making of Ouster Orders Under the Domestic Violence (Family Protection Act) 1989 (Qld) (Paper presented to the International Society of Family Law 10th World Conference, Brisbane 2000).
  35. Edwards, ‘Violence Excluded’, op cit, p 49.
  36. McFerran, ‘Taking Back the Castle’, op cit; J Oberin and W Weeks, Women’s Refuges, Shelters, Outreach and Support Servicesin Australia, (WESNET, for Office of Women and Department of Family and Community Ser vices, Canberra, 2004).
  37. McFerran, ‘Taking Back the Castle’, op cit.
  38. There appears to be a lack of data measuring the number of exclusion orders that are granted, and the differences between regions where there is targeted service-provision and those where this has not occurred.

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