The Use and Abuse of DVOs

A domestic violence order (DVO) is an order issued by a court that sets out specific conditions that must be obeyed, preventing a person from contacting, tracking or attempting to locate the protected person, and preventing a person from being within a certain distance of the protected person.^[1]

The terms used to identify DVOs differ across jurisdictions: ‘apprehended domestic violence order’ in New South Wales; ‘family violence intervention order’ in Victoria; ‘domestic violence order’ in Queensland; ‘family violence restraining order’ in Western Australia; ‘intervention order’ in South Australia; ‘family violence order’ in Tasmania; ‘family violence order’ in ACT; and ‘domestic violence order’ in the Northern Territory.^[2]

Domestic violence order is the most broadly used legal response to allegations of domestic violence.^[3] Offenses for breaches of these orders are dealt with by state and territory criminal courts.^[4] Curiously, 47 per cent or 133 thousand, of all civil cases filled in the Magistrates’ Courts in 2022-23 involved applications for DVOs. The Northern Territory (97%) had the highest proportion of cases involving applications for DVOs.

DVOs directly affect decisions related to family court disputes, particularly if this involves cases where there are issues around the division of finances, property after separation, and issues with parenting orders (a set of orders about parenting arrangements for a child). Some matters related to family law can be considered in the Magistrates’ courts. The most complex family law disputes, including those involving violence, are considered in the Federal Circuit and Family Court of Australia, and the Family Court of Western Australia.^[5]

While it is crucial that the legal system protects all victims of violence, at the same time one must recognise that DVOs are occasionally sought for collateral reasons, for instance, when a person seeks restraining order although she is not truly a victim of violence. For years fathers’ groups have complained that unscrupulous pseudo-victims and overzealous courts often misuse DVOs that should be used as a shield against real instances of domestic violence.^[6]

Indeed, many cases of domestic violence have ended up in our courts where allegations have been entirely disproved, and sometimes many years after the alleged offenders found themselves arbitrarily evicted from their home, alienated from their children, arbitrarily arrested, suffering incommensurable damage to their personal and professional reputation, and financially bankrupted after facing huge court costs to defend themselves from mendacious accusations.

Curiously enough, many people in the community know that false accusations are regularly made, although accusers are seldom  punished. For example, in a survey with over 12,500 Australian respondents, more than half agreed with the statement that ‘women going through custody battles often make up or exaggerate claims of domestic violence in order to improve their case, and only 28 per cent disagreed.’^[7]

This was confirmed in a survey of 68 families by Dr Sotirious Sarantakos, an associate professor of sociology at Charles Sturt University. His survey reveals that a considerable number of allegations are either false or unsubstantiated. Accordingly, ‘the initial allegations of DV were modified considerably by them during the course of the study, particularly when they were faced with the accounts of their children and mothers, admitting in the end that they were neither victims of violence nor acting in self-defence’.^[8]

A survey of 38 magistrates in Queensland reveals that 74 per cent agree that DVOs are often used for tactical purposes related to such disputes.^[9] Likewise, another survey of 68 magistrates from New South Wales indicates that 90 per cent agree that DVOs are commonly sought as a ‘tactical device’ to aid applicants with court disputes and/or to deprive former partners of contact with their biological children.^[10] As noted by Bettina Arndt AM,

Surveys of magistrates have revealed most agree that false allegations of violence are being used to gain an advantage in family law battles. That’s why most family law cases now include allegations of violence. Such an allegation often results in good fathers having to pay for supervised contact to see their children, and most end up losing contact. The current system is set up to disadvantage fathers.^[11]

While it is not possible to know if every DVO is legitimately applied, some applications are known to be grossly unmeritorious. A major problem is how restraining orders are issued and the grounds for which they can be made. There is a notorious lack of scrutiny about the nature and substance of these complaints. Timing is a possible sign that someone is seeking a DVO for reasons other than concern for physical safety. A common example is when, after initiating custody proceedings, unethical lawyers instruct their clients to apply for a restraining order so as to obtain an upper hand at family court proceedings. According to David Collier, a retired judge from the federal Family Court, these orders have become a “major weapon” in the war between parents who want to secure full custody of their children.^[12] The strategy consists in the ability to defame another person with no need for evidence. These accusations can tear families apart but are based on the mere allegation of another person.^[13]

Because restraining orders lack evidentiary standards, they have no evidentiary value in themselves. In the majority of cases, they are granted on a ‘without admissions’ basis.^[14]  An analysis of court files in New South Wales reveals that the courts often deal with these applications in less than three minutes.^[15] These allegations receive only the briefest examination and they are resolved by consent without admissions. The information provided by the applicant is typically brief and it tends to focus on one single incident.^[16] Not only there is a substantial amount of non-relevant details but references to “fear” are included in a routine or habitual manner, ‘frequently as a bald statement to conclude a complaint without any reasoning or thematic connection to the victim’s experience’.^[17]

As for the person who is being accused, having only a few days to defend against these allegations might be not enough time. This is compounded by the distress caused by being thrown out of the home by armed police officers at the behest of the domestic partner. More often than not, the respondent will lose access not only to property but also to their children and even to joint bank accounts. By contrast, the applicant might have spent months, even years, with a lawyer carefully planning how to make these accusations, whilst the accused is given only a couple of days to prepare a defence.  Following a final hearing, the accused will be served a final order through a defective process that may forever undermine his life.^[18] Because DVOs require respondents to vacate the family home, they naturally restrict contact with children, which may result in supervised parenting time or no time at all. Any contact with one’s own children may be permanently banned, since a restraining order makes such contact practically impossible.^[19]

Being expelled from home and subsequently alienated from contact with children is no doubt a traumatic experience. And yet, each year thousands of Australians are served restraining orders that evict them from the family home. Even if an accusation is based on trivial and uncorroborated allegations, a person who is served with an ex parte interim order must immediately vacate the home and make no further contact with his children. This is so even if the alleged victim initiates contact or invites the defendant to come home.^[20]

Since restraining orders are initially granted on ex parte basis, armed police officers will evict surprised owners with no evidentiary hearing or admissions. These orders completely nullify the right of homeowners to occupy their own property, thus making a crime out of the ordinarily innocent act of returning home.^[21] This is compounded by the low burden of proof that is exacerbated by the abbreviated manner in which court hearings are conducted.

As can be seen, DVOs have profound implications for the lives of those who are affected. When an accusation is made the stakes are high. These orders, separating a father from his children for weeks, months, years, and even life, may be issued without the presentation of any evidence of wrongdoing. They are often issued at a hearing at which the accused is not present and about which he may not even be notified.

Let me be clear. I am talking about entirely innocent people. Not everyone who applies for a restraining order is a genuine victim, just as not everyone who is subject to a restraining order is necessarily the perpetrator. Ironically, the person who gets protected may very well be the actual perpetrator of family violence, whereas the innocent person bound by the restraining order may be the innocent victim.

 

My Experience as a Former Law Reform Commissioner

I served the Law Reform Commission of Western Australia from 2012 to 2017. In December 2013, our Commission published a Discussion Paper entitled ‘Enhancing Laws Concerning Family and Domestic Violence – Discussion Paper’, presenting fifty-three specific proposals for reform and raising twenty-nine questions for discussion.^[22] The Paper was followed by a comprehensive consultation with more than 150 individuals expressing their concerns about family and domestic violence. The Commission ultimately received forty-three written submissions, and we conducted additional official consultations to resolve matters arising from these submissions.

Published in June 2014 and entitled ‘Enhancing Family and Domestic Violence Laws’, our Final Report comprehensively addressed all the effects of legislation dealing with family violence.^[23] Our report recommended that these laws must provide a fair and just legal response to family violence. Unfortunately, however, our recommendations were considerably ignored.

The Restraining Orders and Related Legislation Amendment (Family Violence) Bill 2016 (WA), which received Royal Assent on 29 November 2016, updated the definition of domestic violence to ‘promote a contemporary understanding of the nature and seriousness of family violence’.^[24] More specifically, the new legislation dangerously extended the relaxation of evidence rules that were available for interim orders to final decisions.

On the occasion, the then WA Attorney-General (Michael Minchin) contended that a new Family Violence Restraining Order (FVRO) was designed to reduce the onus on the victim to provide evidence of intimidating or controlling behaviour. Further, the then WA Police Minister, Lisa Harvey, declared:

We’re sending a message to the courts that we would prefer them to err on the side of the victim and err on the side of granting one of the violence restraining orders in these scenarios because they do protect women.^[25]

This is extremely dangerous because it removes the presumption of innocence and it assumes that it is entirely acceptable to err on the side of the accused. The removal of evidence erodes the right to remain innocent until proven guilty. In our Final Report, the Commission rejected these moves, noting they were likely to exacerbate the existing problem of overuse and abuse of restraining orders, which are known to be used for tactical purposes in the context of family law litigation. Approached on the occasion by two journalists of The Australian newspaper, I stated:

What this does is erode the very idea of natural justice and the right to remain innocent until proven guilty. This has serious consequences in relation to how respondents can be forced out of their homes, lose access to their children and other rights, without the required for evidence to be provided.^[26] The extension of the removal of evidence even to the grant of final DVOs is totally against what the Commission recommended. The fact that the government claimed these changes as a result of a recommendation of the Commission is patently untrue.

Of course, it is extremely important to protect women who are at risk. But this should not be done in disregard for legal protections to ensure fair treatment for the accused. In our Final Report, we explicitly informed that:

[I]t is vital to acknowledge that not every person who applies for a violence restraining order is a victim of family and domestic violence and not every respondent is a perpetrator …

Although it is true that most applications for violence restraining orders are properly made, sometimes they are unmeritorious or otherwise used for tactical purposes in family law litigation. And yet, many lawyers consider that violence restraining orders, in particular those applied for after proceedings have been instituted in a family law dispute, may actually exacerbate conflict and decrease the prospects of the parties reaching agreement, with a consequent impact upon legal costs.

Because an interim violence restraining order can be made on the uncorroborated evidence of the applicant, the potential for abuse is very real. One example repeatedly mentioned to the Commission during its consultations is where the person protected by a violence restraining order is the perpetrator and the person bound is the victim. Further, it is important to acknowledge, from the respondent’s perspective, the potential consequences of a violence restraining order: exclusion from the family home; prohibition of contact with children; inability to work; and general restrictions on day-to-day activities. Additionally, a respondent is liable to serious consequences under the criminal law for failure to comply with the order (including an interim order).

For these reasons, the justice system must ensure that the legal rights of all parties are respected and, in particular, that respondents to violence restraining order applications have a right to be heard within a reasonable time. Additionally, the importance of ensuring that the legal system responds to family and domestic violence in a fair and just manner supports the provision of better and more reliable information to decision-makers at the outset, thus enabling more accurate and effective decisions to be made.^[27]

The definition of “domestic violence” is used in a broader sense to cover all sorts of behaviour. This is why DVOs are so popular and have become a major weapon in the war between divorced or separated couples. Indeed, a comprehensive study about post-separation conflict reveals that the participants who had sought and obtained DVOs referred to “abusive behaviour” as something that was suggested by their lawyers and social assistants. This is true despite the fact that some applicants themselves did not in fact entertain this perception during the course of the relationship.^[28] As such, Bettina Arndt AM is quite right to state that,

[t]he vast majority of these women are not in a dangerous situation. The public doesn’t realize they are forking out mainly to help women who are very rarely under threat. They may have unpleasant partners who are reluctant to pay her credit card bills but there’s just no logic for the billions being spent to “keep them safe” … The result is on display in the inflated figures form police reports, blown out by numerous domestic violence allegations which serve to gain strategic advantage in family law battles. Many women are encouraged to make such allegations by lawyers or friends telling them they are genuine victims and deserve special treatment in the family court system. No evidence of physical violence is required to make such an allegation. Any experience of emotional abuse or an alleged fear of violence is enough to set the ball rolling, with the “victim” eligible for the truckload of financial payouts, cheap services, and support.^[29]

Perhaps this might explain the remarkable rise in the number of domestic violence incidents (DVIs) over the past years in Western Australia. The broad definition is found in Section 6 of the Restraining Orders Act (WA), which was inserted in 2004—precisely when the number of incidents increased. The explosion in police reports is due to expansion in the definition of family violence to include not just physical abuse but also emotions, economic and social abuse.

The Commission’s Final Report was patently clear: ‘the justice system must ensure that the legal rights of all parties are respected and, in particular, that respondents to violence restraining order applications have a right to be heard within a reasonable time.’^[30] However, DVOs in Western Australia are now usually granted with no evidence. The then Attorney-General stated: ‘We will be moving away from the need for establishing evidence of an act of abuse, as is currently the case’ [emphasis mine].^[31]

Here the then A-G was candidly confessing his intention to undermine one of the most basic principles of the rule of law—that one is innocent until proven guilty. Following the same line of reasoning the then Police Minister declared: ‘To be able to intervene at that point, before that control, coercion and intimidation escalates to violence is a step in the right direction and a huge step for these women who are trapped in those relationship.’^[32]

The word before is important. Here she was supporting the idea that the government should intervene even when no violent action takes place. It is a frightening reality that a perfectly innocent person stands to lose his home, family, and reputation, all as a result of perceived apprehensions. This is happening to people on a daily basis as a consequence of laws which fail to require the normal standards of proof and presumption of innocence.

To make it worse, the WA Police have a pro-arrest policy for allegations of domestic violence. ‘Arrest is the preferred option’, informs us the relevant police manual (COPS Manual, DV 1.1.4.1), even in situations where there is actually no evidence violence has ever taken place. The then Chief Justice of Western Australia, Wayne Martin, told the Law Reform Commission that such a presumption of arrest ‘inevitably produces injustice and hardship in some cases’.

As a consequence, many cases involving restraining orders have ended upon in the courts where allegations of domestic violence have ultimately been disproved years after the alleged offender found himself arrested, evicted from his property, severely damaged in his personal and professional reputation, and facing huge court courts just to defend himself from false and/or malicious accusations.

Even so, the then Liberal government of Western Australia went on to further undermine due process, property rights, parental rights and the right to liberty. That Government introduced these appalling laws despite having received explicit advice against them from the Law Reform Commission. In short, our Final Report clearly rejected these moves, noting that they were more likely to aggravate the problem of overuse and abuse of restraining orders, which are often used for tactical purposes in family law litigation.

The result, of course, comes with a very heavy price: the destruction countless innocent lives. What follows are dramatic accounts of these innocent victims of the system. These accounts come from the many letters addressed to me as a Law Reform Commissioner, which I now feel morally compelled to disclose to the community at large. The names and more personal details of these victims, of course, have been removed.^[33]

I HAVE undergone a soul-destroying experience over the past two years – a Magistrate Court action alleging domestic violence linked to a Family Court action furiously fought against me on a misconceived notion of my personal wealth. I am 78 years of age, though I used to look younger before undergoing two spinal operations in recent years. A former Australian diplomat and ministerial adviser, senior law academic, company director, and a regular contributor to numerous public policy organs. Concurrently with a Family Court action, my former wife, 14 years younger, obviously seeking a change of circumstances, applied 16 months ago for an Interim domestic violence order in a magistrates’ court when I was away from home, based on untested allegations, and then while I was still away, on the basis of an alleged process service, obtained an interim order which had me met by police on my return and given 15 minutes to leave the house with nowhere to go or no other option.

I have not been allowed free access to my house since. At the same time she has, as mentioned, pursued a misconceived Family Court action which after all this time has now been mediated, with combined legal costs of some $750,000 to be paid from the sale of our home after discharge of a $750,000 mortgage. The magistrates’ court was not informed at the outset that there was a Family Court action in motion. At no time over a year or more did I had a realistic opportunity to contest the allegations, either because the Applicant contrived not to be present and on the last occasion, with all this going on (her lawyer frequently engaging in unprofessional theatrics), the Magistrate stated that she was minded to grant the Order without hearing either party. My barrister advised me that in the circumstances my chances of succeeding regardless of how well I presented was as low as 10% and I would be better off letting the interim Order stand.

When this was mentioned later to the Family Court judge, His Honour commented that my treatment was at the least draconian and added that it was not for him to criticise the law itself but he could express a view as to how it was interpreted. He also noted the difficulties that arise from such matters proceeding in separate jurisdictions. The interpretation of this legislation is a reflection of the high salience ‘domestic violence’ has acquired in recent times. That is hard enough for many men.

But the real culprit, as you would appreciate, is the poor and very lose drafting of the legislation which allows relatively trivial acts being deemed as violent. Many lawyers recognise this but say the police have resisted any change as they find the lose language makes it easier for them to protect ‘victims’. Meanwhile absolute basic legal rights and safeguards of the citizen are open to abuse and denial by a flawed process. As a qualified lawyer I find such a reduction of circumstances, as I have experienced, a greater violation of our legal values and supposed rights than whatever it is that such laws and their administration are intended to protect. I would be happy to elaborate further on my experience should you be interested. – J.P., 21 August 2016

FOUR YEARS after my separation and around the time I started dating my current wife, my relationship with my ex-wife deteriorated sharply. One day, upon returning from work, I saw a card stuck in my door. It informed me that police had been to visit and I should attend upon the local police station. When I did so, I was served with a VRO.  Three days earlier my ex made an ex-parte application for VRO in the Magistrate’s Court. Two days later she would make an application in the Family Court seeking sole custody of our children – once again ex-parte. The aim of the VRO was clearly tactical and it was a tactic that worked wonders for her. While the VRO was in force, she filed over half a dozen complaints against me for alleged breach of VRO. I was arrested twice and locked up in the back of a paddy wagon. Once for a spam message accidentally sent via LinkedIn to my entire email contact list (including her). Another time for attending my church with my new family in a location where 24 hours later my daughter (the ‘protected person’) would be within its vicinity… The interim VRO was in force for over two years. Once, after a year or so, my daughter snuck a phone call to wish me a happy birthday. It went straight to voicemail. There was nothing in the world I wanted more than hearing my daughter’s voice but doing so would have sent me to jail.  By then I knew the Restraining Orders Act 1997 back-to-front. I knew there is no defence for accident and I knew of the ludicrous provision (s61B of the Act) which states ‘In the sentencing of a bound person … any aiding of the breach of the order by the protected person is not a mitigating factor.’ I now wonder whether that phone call was a honey trap, part of my ex’s plan.

Over six and a half years have passed since the day I was served with that VRO. Over six and a half years have passed since I have last seen my children.

By now, a family court has found that my ex has ‘lied and misled others.’  The claims she made have now been proven false or found mistaken — but all this is too little, too late.  Now in its seventh year, after well over 100 days of hearings in multiple jurisdictions, the matter is still before the courts. My ex’s case now is that the truth does not matter. By now the children believe I am a terrible man and that they have lost the love they once had for me. The wheels set in motion by those ex-parte hearings can no longer be undone. I have no recourse against her for severing the loving relationship I had with my children, for the stress and anxiety I went through over the past years, for my depression, loss of employment and the astronomical financial costs these proceedings have burdened my family with (costs that have long surpassed the hundreds of thousands).

I know the unknowing reader might think ‘where there is smoke there is fire,’ but they would be wrong. Like the Star Chamber or the Spanish Inquisitors, this jurisdiction follows no evidence rules and judges matters by subjective rather than objective beliefs. ‘Truth’ appears to be of little interest or significance and ‘Justice’ is nothing more than a pre-nominal attached to those in charge of committing the greatest of injustice. I write my story, not out of vengeance, but as a warning to society at large. History has taught us that evil prevails when some people have special rights while others are stripped of theirs. – D.B., 6 October 2016

I UNDERSTAND (from my work in Life Insurance) that around every four hours a suicide happens and that many of these are related to the destruction of the lives of great guys. Work out how many 747s that is in a year and why the recent plane crash (sad as it is) almost pales into insignificance by comparison.  We seem sadly ineffective at changing this. I think the one area you missed is the wonders of the ADVO where a woman can simply decide she doesn’t want the guy anymore (in my case she wasn’t getting to the gym enough, the GFC had affected my salary and she didn’t fancy renovating), duck down the local police station and (per the quote from my ex’s father) ‘the truth doesn’t matter all she has to do is say she’s scared’.  In my case she’d pretended she had an AVO the week before and when she found out I’d discovered it was a pack of lies, seen the police and a lawyer and was legally coming home, she (within an hour) ducked down to local police where a 23-year old constable simply took her word for everything (‘verbal abuse’) raised an interim order and went on holiday for 6 weeks. She even managed to lose the paperwork on her return! During this time (with no evidence, having not spoken to me or witnesses) I was hospitalised, treated like a criminal and locked out of my house and (to a large extent) kids’ lives.  This gave her in effect the house (which she refuses to pay the loan on) and a ‘default’ interim custody arrangement.  As a (to quote a family court qualified psychologist) ‘stable, caring person who loves his three daughters dearly and is dedicated to their emotional, physical and psychological wellbeing,’ I was (and am) devastated. In a further sick twist (after $10k of AVO legal fees, $50k of family law bills already, 12 month ‘homeless’  and having lost my job), I believe I can now prove she committed perjury in the AVO hearing but have been advised that clearing my name could result in the relationship being described as ‘high conflict’ and I might therefore lose my kids… run that by me again… she organises what the police describe as intimidation, commits perjury and hospitalises me and if I prove it I lose my kids? So the kids go to the least ethical and I have to spend $135k to get my kids 50% of the time and prove the assets I had (which are all documented) before we met!

I’ve feel horrible abused by the state! In 12 months, in effect because I was my wife fancied a chance, I’ve gone from a successful executive, living in a great house and seeing my beloved kids to a sad and unemployed man living in a unit and seeing them 4.5 days a fortnight. She having great fun living in a nice house, refreshing her wardrobe and building a healthy bank balance! I’ve had two family court interim hearings (around 10k of fees for each) and on both occasions the judges have refused to hear the case. She’s in a $3m house and it seems beyond the law! Having got on the front foot with her ‘lawyer buddies’ she simply makes the rules… when I have the kids, finances… it’s sick! My estimated legal bill to try and get my kids back and some of my assets is $135,000 – most of it from what I can see relates to a process that could be almost be fully automated and formula driven. Something has to change here. – B.C., 12 March 2014

MY BROTHER and his wife divorced about 5 years ago and my brother has had access to his children only on the weekends, and every second weekend for only one day of the weekend. My brother has recently found love again with a beautiful lady who also has three children of her own and shares custody equally with her ex-husband. In January they became engaged. My brother recently decided to apply for mediation so that he could ask his ex-wife for shared custody, as with the help of his fiancée he would now be able to make sure that they would be supervised properly. His ex-wife refused to attend both sessions of mediation, and was served with court papers so that this issue could be addressed by a judge. As a result she has now filed domestic violence orders against my brother and as a result he has lost access to them until the matter can be heard in court in April.

The accusations levelled at him and his fiancee in regards to domestic violence are utterly false. The claims his ex wife has made cannot be substantiated and the only witnesses she can provide are the children themselves, which she has sole access to until the court hearing. These charges were levelled without any form of proof whatsoever.

My brother and many other men that have found themselves in this situation are at a disadvantage and are treated with disdain by this legal process. Not only is my brother not allowed access, he is not allowed to phone them, if he is granted supervised visits, he must pay $80 an hour for someone to be there, he was served the papers whilst at work in the middle of a shopping centre (I can only guess at the level of humiliation he felt), not only that but the police contacted his employer prior to serving the papers, so he was obliged to notify his superiors about the issue and therefore not allowed any privacy. He lost pretty much everything he owned in the divorce as his ex wife had gone to extreme measures to ensure that she had control of everything prior to her walking away.

He lost his home, his family and his dignity after she proceeded to lie to all their friends about the circumstances of their separation. This is not only affecting my brother, but his fiancée and her children who miss not being able to see his children, my mother who makes a point of seeing them everytime they are with my brother and me and my children. She has taken Family Violence Orders against my brother and on the last occasion that she applied a judge refused to grant it on the grounds that she was not telling the truth and warned her against using this tactic to seek revenge on my brother. She has regularly sought Child Support Reviews because she feels that my brother is not paying her enough. Don’t get me wrong, my brother is nothing but willing to support his children, however, he now has a fiancee to support and they would like to buy a home to raise their family in, not only that but it is not his responsibility to support his ex-wife and her fiancée. I’m sorry for dumping all of this on you, but I am heartbroken about this whole issue. If she forces my niece and nephew to lie for her, I can only imagine the damage that will be done once they are old enough to realise the consequences of their actions.  We are desperate for a resolution that is in the best interests of the children and that exonerate my brother from her false accusations. – A.M., 15 March 2015

MY FRIEND is a good, hardworking farmer, who met a woman, fell in love, married and had a beautiful little boy (who is now 5).  This woman has now totally turned this man and child’s  life upside down.  She had an affair with another local man, left the family home (after raiding it) took the little boy, and went to the Police and put took out a false violence order against her husband, there has never been any family violence. 

I know this woman and her husband. She has always been known in the area to be a deceitful person.   This event happened in September 2014 and the victimisation and lies about this man continues to this day.  I do not know how this man keeps going. The little boy was kept from his father for over 5 months until the court gave him fortnightly access.  The love between father and son is obviously very strong.  The mother is manipulating and mentally abusing the little boy in a very sick way, poisoning his little mind against his father some of which he has repeated to family and friends, the list goes on and on.

This woman has recently had the little boy assessed by a professional. The assessment was received yesterday by our friend which I read, it was so one sided towards the woman, outrageous lie after lie. There was no assessment with the father and the child, the father was able to speak with the assessor for an hour, but with a violence order in place had to be careful about what he said about the mother so the assessor would not have got a true picture from the father. I believe he will be distressed being torn from his dad as well as his farm that he loves and spent the first years of his little life in.  If the father and child loose contact with each other, I hate to think what it will do to them.

How can a woman obtain a false violence order without any consultation or evidence?  How can this same woman “cop shop” 4/5 different Police Stations putting in further untrue complaints without a red flag! The local Police interviewed my friend after another of her complaints and they took it no further as they were aware of what this woman was doing yet she continued to “cop shop” and make outrageous statements such as “he is getting worse and I fear for my life” when there has been absolutely no contact between the two, verbal or physical.  How can this happen?  She is stealing precious Court time from genuine victims of abuse. My rather disjointed letter to you is in desperation. Is this is our System?  I feel it is appalling and may I say very scary that a person out of pure vindictiveness can continue along this path of destruction on a weekly basis with no way of stopping her and no accountability?  So the perpetrator wins? – S.T., 16 April 2016

ON MARCH 5th 2013 my mother, children and I were attacked in my home, my $17,000 boat was smashed up and on March 6th I ended up on an emergency ward. To cover this and gain access to my home and pervert justice in the family court, on March 13th 2013 an DVO was issued by the perpetrator and I lost access to my home, children and belongings based on what the police now admit were false allegations and perjury. I lost my home and over half a million dollars as a result of this demonstrable fraud. A three-year wait to get to the family court meant the arrangement put in place then became default.

What has destroyed my life has now been proven false based on hard evidence. Police have stated I was the victim of criminal intimidation. Perversely I was given no change to present evidence and I faced court three months later in a state of absolute shock and barely coherent. I spent over $300,000 in legal fees, lost another $135,00 through fraud and have lost hundreds of thousands in lost income simply trying to get access to my own children back. The system is taking children from and driving innocent Dads to their deaths whilst tolerating women diverting crucial resources from real victims. Lawyers are without fear promoting this tactic.  I left a 9-year-old in tears again at a school gate on Friday and dropped things to my stolen home this morning. I did nothing more than marry the wrong woman and try to be a good dad.  – B.C., 17 October 2016

Conclusion 

Domestic violence is a grave issue and initiating this kind of conversation by no means implies going soft on the serious problem; and quite to the contrary. However, the sympathy due to those who live in fear of violence should be extended to those who are the victims of false allegations, which, arguably, is in itself a form of domestic violence. Because DVOs are granted ‘ex parte’, no evidentiary rules are properly applied. As a consequence, thousands of Australians have been caught in police proceedings that evict these individuals from their homes and separate them from their children. These orders lack the proper application of due process and they are often granted on a ‘without admissions’ basis, which means no evidence are produced. Under the existing laws it might not even be necessary to demonstrate that violence has occurred. Action can be taken before that point, simply on the basis that someone fears that the alleged control or intimidation could escalate into violence. This is an extraordinary shift, undermining one of the most sacrosanct elements of the rule of law, namely that one is innocent until proven guilty.

Prof. Augusto Zimmermann PhD, LLM, LLB, CIArb is a former member of the Law Reform Commission in Western Australia and a former associate dean (research) at Murdoch University, School of Law. This is a version of the paper presented by him at “Restoring the Presumption of Innocence”, a conference held in Sydney on 31 August 2024. Details at https://www.presumptionofinnocence.au/  

[1] ‘Family, domestic and sexual violence’, Australian Institute of Health and Welfare, Australian Government, 19 July 2024, <https://www.aihw.gov.au/family-domestic-and-sexual-violence/responses-and-outcomes/legal-systems>.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] ‘To battered women’s advocates, and to feminists such as Boston Globe columnist Eileen McNamara, grips about the restraining-order system are merely an anti-female backlash. At times, some men in the fathers’ groups can indeed lapse into angry rhetoric that smacks of hostility to women. But it is equally true that many women’s advocates (who, unlike the divorced dads, have a good deal of influence in the legal system) seem to have a “women good, men bad” mentality that colors their view of family conflict’. – Cathy Young, ‘Hitting Below the Belt’, Salon.com, 25 October 1999 <http://www.salon.com/1999/10/25/restraining_orders/>

[7] Patrick Parkinson, ‘How Widespread are False Allegations of Abuse?’, News Weekly, Melbourne/Vic, 25 June 2011 <http://newsweekly.com.au/article.php?id=4778>

[8] Sotirios Sarantakos, ‘Deconstructing Self-Defense in Wife-to-Husband Violence’, (2004) 12 (3) The Journal of Men’s Studies 277, 287

[9] Belinda Carpenter, Susan Currie and Rachael Field, ‘Domestic Violence: Views of Queensland Magistrates’ (2001) 3 Nuance 17, 21. See also: Patrick Parkinson, Judy Cashmore and Judith Single, ‘The Views of Family Lawyers on Apprehended Violence Orders after Parental Separation’ (2010) 24 Australian Journal of Family Law 313, 317

[10] J. Hickey and S. Cummins, ‘Apprehended Violence Orders: A Survey of Magistrates’ (Sydney/NSW: Judicial Commission of New South Wales, 1999) 37.

[11] Statement made by Bettina Arndt AM via email communication.

[12] Harriet Alexander, ‘False abuse claims are the new court weapon, retiring judge says’, Sydney Morning Herald, 6 July 2013, <www.smh.com.au/national/false-abuse-claims-are-the-new-court-weapon-retiring-judge-says-20130705-2phao.html>

[13] Adam Blanch, ‘Vigilante Justice: Feminism’s Latest Attack on Human Rights’, On Line Opinion – Australia’s E-Journal of Social and Political Debate, 22 August 2014, <https://www.onlineopinion.com.au/view.asp?article=16613>

[14] Parkinson, Cashmore and Single (n 9) 317.

[15] Ibid.

[16] Ibid, 318.

[17] Ibid.

[18] David N. Heleniak, ‘The New Star Chamber: The New Jersey Family Court and the Prevention of Domestic Violence Act’ (2005) 57 (3) Rutgers Law Review 1009, 1014-16.

[19] Ibid.

[20] Stephen Baskerville, Taken into Custody: The War Against Fathers, Marriage, and the Family (Nashville/TN: Cumberland House, 2007) 177.

[21] Jeannie Suk, ‘Criminal Law Comes Home’ (2006) 116 Yale Law Journal 1, 31.

[22] ‘Enhancing Laws Concerning Family and Domestic Violence – Discussion Paper’, Law Reform Commission of Western Australia, Project No.104, December 2013, at https://www.wa.gov.au/system/files/2021-02/LRC-Project-104-Discussion-Paper.pdf

[23] ‘Enhancing Laws Concerning Family and Domestic Violence – Final Report’, Law Reform Commission of Western Australia, Project No.104, June 2014, at https://www.wa.gov.au/system/files/2021-06/LRC-Project-104-Final-Report.pdf

[24] The Act amended the following in Western Australia: the Restraining Orders Act 1997; the Bail Act 1982; the Children and Community Services Act 2004; the Community Protection (Offender Reporting) Act 2004; The Criminal Code; the Criminal Investigation Act 2006; the Prisons Act 1981; the Sentence Administration Act 2003.  See: Restraining Orders and Related Legislation Amendment (Family Violence) Bill 2016 (WA), Parliament of Western Australia, <https://www.parliament.wa.gov.au/parliament/bills.nsf/BillProgressPopup?openForm&ParentUNID=5B414010DBFD1DCA48258027000789E8>

[25] ‘New family violence restraining order set to be introduced by WA Government’, ABC News, 8 March 2015, <https://www.abc.net.au/news/2015-03-08/wa-introduces-new-restraining-order-for-family-violence-victims/6289230>

[26] Rick Morton and Paige Taylor, ‘No-evidence AVOs slammed as threat to basic rights’, The Australian, 24 September 2016, 7.

[27] ‘Enhancing Laws Concerning Family and Domestic Violence – Final Report’, Law Reform Commission of Western Australia, Project No.104, June 2014, <https://www.wa.gov.au/system/files/2021-06/LRC-Project-104-Final-Report.pdf>

[28] Parkinson, Cashmore and Single (n 10) 313.

[29] Bettina Arndt, ‘Domestic Violence Gravy Train’, 14 September 2022, <https://betinaarndt.substack.com/p/the-domestic-violence-gravy-train>

[30] LRCWA, Final Report (n 28).

[31] Peter Law, ‘New Family Violence Restraining Order to better protect abuse victims’, PerthNow, 8 March 2015, <https://www.perthnow.com.au/news/wa/new-family-violence-restraining-order-to-better-protect-abuse-victims-ng-74d5574d47ffb1b9ee588f58aba68c41>

[32] ‘New family violence restraining order set to be introduced by WA Government’, ABC News, 8 March 2015 <https://www.abc.net.au/news/2015-03-08/wa-introduces-new-restraining-order-for-family-violence-victims/6289230>

[33] This is only a small sample of letters received by me between 2014 and 2016. To protect their identity, the names and personal details are removed.