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.
I’m glad the problem is finally being noticed – although for some reason I have little faith that any reform by this government will actually be an improvement.
Moved On 
Seems like an excellent idea, Jeremy. Nice work.
I like the idea of making the order equal (it both parties barred).
I’ve seen this situation from both sides. The use of it as a weapon for spite is at best irritating; a friend of mine was being abused and the abuser took out an order against her and her sister (who was supportting her). He got it on the basis that he was ‘threatened’ by them. It was most distressing for the family as they didn’t know what it all meant and thought that the Court was blaming them (this was a guy that had hospitalised this girl on a number of occassions).
That being said, if you’ve ever been actually stalked, the law is slow to act and by the time they do, it is often in response to an incident. I have also seen this far too close than anyone would want to.
Mutual orders work well where both parties are happy to be identified, but in the latter situation is was a person who was unknown to the victim and she wanted her identity kept from him. It was a tough gig to balance.
I don’t understand how this works – if an order is to not stalk/harass etc a person, surely the respondent has to know who they need to say away from?
Gah, sorry – quote from last comment was supposed to be in response to narc, not a link to the comment
A few examples: It could be a person who follows you home from work everyday, watches you from a distance, whatever; you’ve called the police. They were arrested.
More commonly, they know your name, but you don’t want them to have other contact details and/or confirmation of your details. For this reason you are able to suppress your address etc in the order. Makes it harder to enforce, but the focus needs to be on protection.
Which is what lefty is getting to as well. I am talking about legitimate cases, where the order was taken for protection. People using it for spite undermine the entire system.
That’s not entirely true. I took out an intervention order against a stalker – there was neither a requirement nor a recommendation to take out mutual orders. That order was renewed twice, and at no time was the subject of any kind of reciprocal order raised by the court.
In fact, when I first offered it (in the mistaken belief that it would speed up the proceedings), the magistrate firmly told me that one was neither required nor necessary.
theconsciencevote – I’m not sure what point you are trying to make… The point that Lefty was making was that perhaps there should be a requirment in some circumstances and a recommendation in others to take out mutual orders. The issue is that there isn’t. So it isn’t inaccurate to say there isn’t nor is it inaccurate to say perhaps there should be…
Thanks for the examples, narcotic, that makes it clearer.
Still, it seems those kinds of cases where mutual orders wouldn’t work would be a minority – certainly Jeremy’s suggestions would be worth using as the default, both to discourage frivolous or vexatious orders and to improve the fairness and efficiency of the system.
There are a lot of cases where people have no intention of seeing the applicant, but as soon as they understand that it’s a weapon the applicant will have against them, and that the police will assume in any dispute that they’re the villain, then they promptly demand their own.
As for orders where you don’t want the other person to know where you live etc – that’s easily managed with both the current orders and my proposed option. If the applicant doesn’t want to reveal their address, you just have the order require that neither attend within 200m, say, or any place where either person lives or works. Obviously if they appear near the person’s house by accident not knowing where it is then it’s not a breach – you can’t breach an order by accident, there has to be intent.
Exactly Jeremy. Agree 100%. And Jordan, I agree, the mutual orders should be the default. Certainly an abused person wouldn’t have an issue with not being allowed near the other party. However, there is, as Lefty mentioned, a need for police to understand history in the legit cases where there is actual fear and very real apprehension of harm.
I’ve been on the receiving end of a stalking intervention order. A policewoman who lived next door to me and with whom we had been in dispute over a right-of-way assaulted me one morning, then claimed I had assaulted her and got an order. In the order she named her five-year-old daughter as a “victim of stalking.” Great, I was accused of stalking a five-year-old. For two weeks I lived in fear of being in breach of the order by accidentally being too close to this woman or her child. This could have easily happened as she lived next door, our houses were joined together and our kids went to the same school.
Before the order was served on me two coppers came to my house at night to let me know that I was in big trouble, I’d better not breach the order, etc etc.
Two weeks later it went to court. My neighbour – now, thank Christ, my ex-neighbour – didn’t bother showing up. So it was thrown out. But she had made my life and my family’s life hell, and cost me a bundle in legal fees, simply by making un-challenged statements to the magistrate.
When I got hold of the recording of her testimony I found she had lied repeatedly under oath.
But there were no consequences for her for doing this. It’s just how it works.
Sorry for the long post. It wasn’t the end of the story but I’ll tell the rest another day.
Thanks for writing about this Jeremy.
Brendan O’Reilly
My cunt of an ex (and her mother) used one of these recently during a breakup settlement dispute. Conveniently used to get me out of the house, empty all of my possessions and attempt to pressure me into an unfavourable settlement agreement to see my possessions returned – which ultimately didn’t work.
What pissed me off the most about the whole scenario was that a solicitor actually said to me “I know it’s all bullshit, you know it’s all bullshit, she knows it’s all bullshit, and so do the courts – but she’s a girl, and you’re unlikely to win any fight based on that alone”.
I’m supporting any reform to the AVO system based on my experience and the sheer unfairness and bias shown to the “respondent”.
Andy B: your situation sounds unfortunate and while I sympathise with your predicament, it must be taken in the context that violence against women by their partner is the number one cause of preventable hospitalisations in Victoria. Given that, the courts and police – and government policy for that matter – must err on the side of caution. The fact that you use such hateful anti-women language in your post suggests that you need to at the very least re-direct your anger or get some assistance to help you deal with your grievances (notwithstanding that I am assuming that your ex-partner legitimately wronged you and you have good reason to be angry).
This is important to remember and is why its hard to get the balancing act right. What’s so great about Jeremy’s suggestion is that it reduces the ability of intervention orders to be misused as in Andy’s and Brendan’s cases, without diminishing at all the ability of people to get protection from apprehended violence or stalking where a legitimate fear exists. Its one of those rare beasts in matters of public policy, a win-win.
While I’m also sensitive to overtones of misogyny in language, narcotic, I think you’re drawing a bit of a long bow here on what seems to be the basis of a single word Andy used – a word that plenty of people I know employ generically without any sexist connotations (although obviously some use it in a hateful fashion). He deserves the benefit of the doubt, surely; to me his post clearly reflects anger at a couple of individuals, but not necessarily anything more than that.
narcotic
notwithstanding that I am assuming that your ex-partner legitimately wronged you and you have good reason to be angry
And an assumption it nearly always has to remain.
The last time I heard someone express his grievance in AndyB’s choice of phrases, I had just spent half the night plucking pieces of glass from his girlfriends cheek.
I must note however, that an order was already in force.
We spend billions a year on establishing wether any testimony in such matters is worth the paper it’s on.
If the order restricted both parties, most of that effort would be unnecessary – they could concentrate on enforcing it.
I agree lykurgus both with your experience (it is also mine) and that the orders should default to being mutual. I was merely suggesting why the courts err on the girl’s side in these situations.
Jordan – I felt the expression used and the manner in which it was used was generically violent against women. I am perhaps biased by experience (similar to that described by lykurgus).
jordanrastrick is right – just because I called the bitch a “cunt” doesn’t mean I have a blanket hatred towards all women. I called her that because of what her and her mother did, for the simple reason to try and gain an advantage. Thankfully it’s all in the past now and I have no reason to have any contact with either of them ever again.
As has already been pointed out the whole point is that the system is open to incredible abuse and is in serious need of an overhaul. If the system thinks that it’s seriously ok to displace, inconvenience and humiliate a person on another’s say-so with virtually no recourse or fair chance of proving otherwise, then there’s something seriously fucked.
I was merely suggesting why the courts err on the girl’s side in these situations.
Just so.
Absent the mutual order, the question becomes (at the risk of painting in broad strokes), “what is least likely to endanger someone?”