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Family violence – WA

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From 6 August 2020 some provisions of the Family Violence Legislation Reform Act 2020 commence, amending the Criminal Code, Sentencing Act 1995, Bail Act 1982 and Restraining Orders Act 1997, among others.

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 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.

More information

The By Lawyers Criminal and Restraining orders guides have been updated accordingly.

Further provisions of the amending Act will commence in October 2020. By Lawyers guides will be further updated when those amendments commence.

Family violence – WA

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Various legislation has been amended as a result of the Family Violence Legislation Reform (COVID-19 Response) Act 2020.

The amendments provide for:

  • applications for Family Violence Restraining Orders and Violence Restraining Orders to be made online;
  • increased flexibility for courts in allocating hearing dates and serving documents in relation to applications for restraining orders;
  • police to be able to grant bail for breaches of a Family Violence Restraining Order or a Violence Restraining Order in urban areas, consistent with their existing power in regional areas;
  • courts to be able to impose electronic monitoring requirements as part of a home detention order in relation to a restraining order, a bail condition, or a sentence.
  • new offences and penalties for interfering with electronic monitoring equipment, or failing to follow the directions of a community corrections officer for electronic monitoring.

These amendments have been incorporated in the relevant By Lawyers Guides.

See Criminal Magistrates Court, under both Bail and Sentencing and also Restraining Orders for more information.

Presumption against bail – WA

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A presumption against bail has been created via recent amendments to the Bail Act 1982 (WA). There is now a presumption against bail for those charged with terrorism offences. This brings WA into line with other states.

The Bail Amendment (Persons Linked to Terrorism) Act 2019 (WA) amends the Bail Act 1982. Its purpose is the implementation of the 2017 Council of Australian Governments agreement for a presumption against bail to apply to persons with links to terrorism. A presumption against bail now applies in WA in relation to certain ‘terrorism offences’ and for ‘persons linked to terrorism’, as newly defined in s 3 of the Bail Act.

A person has links to terrorism for the purposes of the Bail Act if:

  • they are charged with, or have been convicted of, a terrorism offence; or
  • they are subject to an interim control order or confirmed control order made under the Criminal Code Act 1995 (Cth); or
  • they have been the subject of a confirmed control order within the last 10 years.

It is not necessary for these links to terrorism to have any connection to the charge currently before the court for which bail is being considered.

The amendments commenced on 1 January 2020.

The full commentary in the By Lawyers Criminal Magistrates Court guide for Western Australia has been updated accordingly.

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