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Which Court has jurisdiction to Grant A VRO for a child?

TROUBLE AT MILL: JURISDICTIONAL UNCERTAINTY RE: VIOLENCE RESTRAINING ORDERS (VROs) PROTECTING CHILDREN. 

The 2011 Amendment to the Act

Which court (Magistrates Court or Children’s Court) has jurisdiction to make a Violence Restraining Order (VRO) protecting a child has become a very vexed issue in WA because of the Restraining Orders Amendment Act 2011 (WA), (“the Amendment”).

Prior to the Amendment, the Children’s Court of WA only heard VRO applications if the Respondent, (the alleged perpetrator), was a child. Thus, a child under 18 could only be restrained by order of the Children’s Court. Applications protecting children were made in the Magistrates Court. In the Amendment the legislature sought to permit a child or a specified person acting on the child’s behalf to make an application for a VRO to protect a child in the Magistrates Court or the Children’s Court. The Explanatory Memorandum states:[1]

Additional words in section 25(3)(a) permit a child or a specified person on the child’s behalf, to make an application for a VRO in either the Children’s Court or the Magistrates Court.

Good intentions

However, whilst the intention was laudable and clear the amending clause is not.  Section 25(3) of the amended Restraining Orders Act 1997 (WA) now reads:

25.  Application             

(3)      An application for a violence restraining order made in person is to be made in the prescribed form to —

(a)        if the respondent or person seeking to be protected is a child, the Children’s Court; or

(b)        otherwise, the Magistrates Court.

 

Two applications/hearings when a child is involved?

 

The effect of s 25(3) appears to be that all applications concerning children are to be heard in the Children’s Court. This is problematic for say a parent who has applied for a VRO against his/her partner in the Magistrates Court who wishes to extend the protection of the VRO to the child – because two applications, in separate courts may be required.

Unintentionally, the legislature appears to have conferred exclusive jurisdiction on restraining orders concerning children to the Children’s Court.  The proposition that the Children’s Court has exclusive jurisdiction to hear all applications re restraining orders concerning children is lent considerable weight by s 20 of the Children’s Court Act of Western Australia Act 1988 (WA) which reads as follows[2]:

20.   Noncriminal jurisdiction as regards children

(1)      Subject to this Act, the Court has exclusive jurisdiction to hear and determine all applications made with respect to a child —

(c)        under the Restraining Orders Act 1997 (subject to section 52 of that Act);

 

Concerns raised by the profession

 

Members of the profession were concerned about the likely effect of the Amendment. Ms Heidi Guldbaek of the Domestic Violence Legal Workers’ Network in an article in the Law Society of WA’s journal Brief detailed the concern as follows[3]:

 

In particular, the Network raised concern about amendments to s25(3)(a) which appeared to expressly provide that all children’s matters must be dealt with in the Children’s Court. The Network’s concern was that the proposed amendment would see VRO applicants who wish to also have their children protected under the [VRO] order, have to apply separately at two different courts, and if contested, have to undergo two separate trials about virtually the same matter, leading to further re-victimisation. [4]

 

When the bill was before parliament the Government noted the concerns raised and declared that it was not the intention of the Government to make it overly cumbersome for parents to protect their children. [5] The Government also relied on the Magistrates Court powers to extend VROs to people other than the Applicant (including children) pursuant to section 68 of the Act which states as follows:

   68.  Orders may be extended to apply to other people

(1)        When making a restraining order a court may extend the order to operate for the benefit of a person named in the order in addition to the person protected by the order.

(2)        If an order is so extended the provisions of this Act apply to the named person as if that person were the person protected by the order.

Inconsistent judicial approach

However, not all Magistrates in the Magistrates Court are satisfied that they have the power to make VROs protecting children. Mr Michael Hovane of Legal Aid WA[6] summarised the current position as follows:

 

Most Magistrates and Courts are reading s25(3) as being subject to the provisions of s68, so they have no issue with adding children on to a parent’s order if there are grounds for the children. However, some Magistrates and Courts are interpreting the law to mean that section 68 is to be read subject to section 25(3), thereby concluding that they have no power at all to make a VRO for the benefit of a child in the Magistrates Court, even under section 68. These Courts are hearing the application for the parent, but refusing to hear an application to add the children and are telling the parents they have to separately make an application for the children to the Children’s Court. This is happening with some Magistrates at Joondalup Magistrates Court, Perth Magistrates Court and some country courts.

 

 

 

Hansard

 

The Hansard[7] record of the Second Reading speech is revealing, but not conclusive. The Hon Giz Watson[8]  (Green Party) moved that a new subclause (4) be included so to read as follows:

 

25. Application              

(3)        An application for a violence restraining order made in person is to be made in the prescribed form to —

(a)      if the respondent or person seeking to be protected is a child, the Children’s Court; or

(b)      otherwise, the Magistrates Court.

 

(4)    Nothing in subsection (3) shall be taken to prevent an application for a violence restraining order from being made in person by a parent or guardian of a child on behalf of that child to the Magistrates Court, unless the respondent is a child, in which case the application is to be made to the Children’s Court.

 

The Hon Michael Mischin for the Government declined to accept the amendment stating:

 

The proposed amendment will not really add to the circumstances, except potentially to complicate them. As presently advised, we will not support the amendment. I would certainly have to give it considerably more thought before I would be prepared to accept an amendment in those terms, as it may warp the process and cause greater confusion. [9]

 

Meaning cannot always be easily discerned in a parliamentary debate. However, what is clear from the Hansard record is that any judicial officer seeking clarification on the statutory intention re sections 25(3) and 68 of the Act is likely to be disappointed.

 

Mr Hovane describes the difficulties experienced by clients in the following terms:

There is definitely direct evidence that clients are being confused, affected and disadvantaged. It is difficult to tally numbers but DVLU, CLCs and Women’s Refuges are all able to each give numerous case examples of actual matters where their clients have been affected. I have had a number of clients personally in this situation and can say categorically that it is causing significant problems.  The issues in practice include:[10]

  • delays in getting Interim VROs for children due to having to make a separate initial application to the Children’s Court, having to do separate additional paperwork, having to wait for a separate Children’s Court listing, having to travel to a different location (for PMC/PCC matters, other courts registries are same location)
  • significant duplication of time involved for clients due to having attend 2 lots of proceedings which are often listed for separate dates. This includes having to have 2 separate hearing dates
  • no legal advice or support initially as the Children’s Courts are generally not funded or resourced for a VRO duty lawyer service or other legal advice or support services for VROs
  • Additional costs for Legal Aid and privately paying parents by having to fund 2 sets of proceedings and hearings.
  • Blow outs in times for VRO hearing dates in PCC particularly as numbers of additional VROs for children are being set for trial without any commensurate additional judicial or court resources

Unwarping the process and removing confusion

The latest update from the Department of the Attorney General is that the Government is planning to introduce an amendment to remedy the problem in May 2013. At the time of writing and absent legislative amendment, the consensus view regarding which court has jurisdiction to make a VRO protecting a child is as follows:

(a)          If the Respondent or Applicant is a child and no adult parties are involved the application must be determined in the Children’s Court.

 

(b)          If an adult is seeking protection and also seeks to extend that protection to his/her child then the Magistrates Court may determine the matter. However, some judicial officers in the Magistrates Court are refusing the extend VROs to children because they believe the Children’s Court has exclusive jurisdiction. In these circumstances separate applications (and hearings) are required in the Magistrates Court and the Children’s Court.

 

[1] Restraining Orders Amendment Bill 2011, Explanatory Memorandum, Cl 7.

[2]  Children’s Court of Western Australia Act 1988 (WA).

[3] Heidi Guldback, “Restraining Order Amendments: Children put at risk when good intentions lead to unintended consequences” Law Society of Western Australia Brief, March 2013 at pages 30-31. 

[4] Heidi Guldback, “Restraining Order Amendments: Children put at risk when good intentions lead to unintended consequences” Law Society of Western Australia Brief, March 2013 at page 30. 

[5] Heidi Guldback, “Restraining Order Amendments: Children put at risk when good intentions lead to unintended consequences” Law Society of Western Australia Brief, March 2013 at page 30. 

[6] Correspondence from Michael Hovane, Managing Solicitor, Domestic Violence Legal Unit to the writer dated 12 April 2013.

[7] Hansard, Legislative Council Second Reading Restraining Orders Amendment Bill 30 August 2011, p6300-6314a (pages 4-6).   

[8] Hansard, Legislative Council Second Reading Restraining Orders Amendment Bill 30 August 2011, p6300-6314a (page 4).   

[9]  Hansard, Legislative Council Second Reading Restraining Orders Amendment Bill 30 August 2011, p6300-6314a (page 4).   

[10] Correspondence from Michael Hovane, Managing Solicitor, Domestic Violence Legal Unit to the writer dated 12 April 2013.