From 1 January 2021 new provisions regarding serial family violence commence in WA. These are the final provisions of the Family Violence Legislation Reform Act 2020. Various sections of this amending Act have commenced over the course of the year. The amendments affect the Criminal Code, Sentencing Act 1995, Bail Act 1982 and Restraining Orders Act 1997, among others.
Serial family violence
From 1 January 2021 there is a presumption against bail for a person charged with a ‘family violence offence’ who has been declared a ‘serial family violence offender’. These terms are defined in s 3 of the Bail Act.
The presumption may be rebutted if there are exceptional reasons why the accused should not be kept in custody and the bail authority is satisfied bail may properly be granted.
Practitioners will recall that the previously commenced provisions of the amending Act include:
Family violence – Bail considerations
The court may defer consideration of bail for 30 days for an accused charged with an offence where the accused is in a ‘family relationship’ with the victim, as defined in s 3 of the Bail Act. The purpose of the deferral is to allow the court to determine what, if any, bail conditions should be imposed to enhance the protection of the victim of the alleged offence.
There are additional provisions relating to the interaction of bail conditions and restraining orders.
Family violence – Restraining orders
Sections 3 to 6A of the Restraining Orders Act 1997 define all relevant terms used in the Act, including what constitutes ‘family violence’.
Some of the amendments deal with the conduct of family violence proceedings.
The court must enquire as to whether any family law orders are in place for the parties to a restraining order application before the court makes a restraining order. If family law orders are in place, the court must take reasonable steps to obtain a copy or information about the orders and take their terms into account.
At any defended hearing the court is not bound by the rules of evidence and may inform itself on any matter in such a manner as it sees fit: s 44A. This section also specifically makes hearsay evidence admissible.
Victims of family violence may have one or more support person with them when they give evidence.
The court, either on its own motion or at the request of a party, may use CCTV or other screening arrangements for the giving of evidence by any party or witness in restraining order proceedings, subject to consideration of a number of factors set out in s 44E.
The By Lawyers Criminal and Restraining orders guides have been updated accordingly. The changes to these publications will be live from 1 January 2021.