Page 1320 - Week 04 - Thursday, 30 March 2017
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A protection order can also be amended to make it less strict by deleting conditions, prohibitions or restrictions and/or reducing the period for which the order remains in force. Both pieces of legislation that were approved in 2016 allow the Magistrates Court to amend a protection order only if three conditions are met. Two of those three conditions deal with guaranteeing that the protected person and any children involved are not put at risk as a consequence of an amendment.
The bill that we are debating today would introduce a significant exception to this process, namely, that if the parties to a protection order all agree that the order should be amended, the Magistrates Court must amend the order regardless of whether or not these three conditions have been met or the court has even considered them.
This means that if a woman, for example, has a protection order against her partner, but then later she and the partner both apply for the protection order to be made less strict, the Magistrates Court is required to grant the amendment no matter what. Consent of the parties is enough to compel the court’s decision.
The Attorney-General’s office has explained that the purpose behind this change is “To make it simpler to amend a protection order where everyone agrees it should be amended,” in order to “facilitate amicable resolution of protection order disputes, something which is, under current legislation, unnecessarily difficult”.
I understand this rationale and certainly agree that legislation should generally avoid creating unnecessarily difficult burdens. Nevertheless, I have had multiple stakeholders contact my office with concerns over the government’s proposed amendment. Those expressing concerns have included academics whose research deals with issues of child protection, those involved in community organisations and lawyers who have worked specifically with domestic violence victims.
As the head of one community organisation explained, there are simply too many cases where the alleged perpetrator has successfully coerced or sweet-talked the other party into consenting to an amendment, and then the offender has sought to take revenge or has simply got out of control again.
In these circumstances, the bill before us would force the Magistrates Court to amend the order regardless. When I raised this concern with the Attorney-General’s office, I was told that two processes are already in place to protect children and to protect the parties in these instances. First, “Deputy registrars will question the orders in cases where it looks like there might be duress or threats.”
This sounds good in theory, but it presumes that deputy registrars will somehow always detect coercion, and it may ignore the possibility that a protected party may genuinely wish to amend an order despite good evidence that doing so will put that party and/or innocent children at risk.
The second process that the Attorney-General’s office suggested as a safeguard is that “If there is any indication on the facts that a child’s safety is in issue, the magistrate or
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