The media – well, the Sunday Age – have finally noticed that there’s a bit of an issue with intervention orders clogging up the courts.
Unlike an ordinary civil case, you don’t have to pay the court a fee to issue an intervention order. Unlike a criminal case, there’s no assumption that the police will be involved. And whilst in practice an intervention order is able to be used as a weapon by the applicant against the respondent – the police simply assume that the person who’s got the order is the “goody”, and the person against whom it was obtained is the “baddie”, and they don’t bother prosecuting any actions by the applicant that cause the breach of the order – the courts still tend to err on the side of caution, because what magistrate wants to refuse an order and then find out the next day that the applicant has come to serious harm?
So what happens? Even when the parties do not want to see or have anything to do with each other, the respondent has to go and get their own order so that they’re not at risk of being assumed to be the villain in any dispute. And if the parties can’t agree on mutual orders – which is quite common, since they are by definition people who can’t get along – then the courts have to allocate time to hear drawn-out, he-said-she-said, petty, interminable evidence to decide who’s in the right.
This costs us, the community, a FORTUNE.
So what should we do about it? Obviously we want to be able to separate warring parties. But we don’t want to encourage frivolous applications. Nor do we want to make applications expensive so that the people who really need them can’t get them.
I suggest we simply have an order that the court makes that separates parties without specifying an “applicant” or “respondent”. It’s a KEEP APART order, and it operates against both parties equally – tells them not to contact each other, not to write about each other, not to go to each others’ homes, to walk away if they see them in the street. Randomly order the parties so the police do not know which person applied, and so they don’t commence any investigation into a breach with assumptions as to who’s the villain simply from the paperwork.
This order would cover most neighbourhood, internet and other disputes where the parties don’t have any need to see each other at all. It would discourage a lot of applications where the motivation isn’t really fear, it’s spite. It would save the court a lot of time – and taxpayers a lot of money – in disputed applications, when respondents instead realise that it goes both ways, and simply tells everyone to just move the hell on.
There are, of course, situations where this approach would not work – specifically, incidents of family violence where the parties do not intend to separate or where there are children involved. In those cases it certainly does make sense to have orders that make clear the history so that the police know what’s going on.
As it happens, however, they’re covered under a different Act to the stalking intervention orders already.
There is one way even the family violence orders need to be changed: they also need to be able to be enforced against the applicant when the applicant actually creates the breach. The courts regularly see situations where a person takes out an intervention order against her partner. Then they reconcile, he moves back in, but she doesn’t bother going back to the courts to have the order rescinded. Next time there’s a fight, she calls the police and, hey presto, he’s charged with breaching the intervention order. She isn’t. Or other situations where he’s the one with an order, she doesn’t; he rings her up and abuses her; she shouts back and she’s the only one charged.
We need to revise intervention orders so that they’re not weapons to be used by one party against another; they’re nothing more than a precaution the court puts in place to keep people safe. Not an easy way of getting at someone you don’t like.