The new Act brings the intervention order regime for non-family members into line with the one under the Family Violence Protection Act 2008. They aren’t 100% identical but share many common features. These include the ability to impose certain types of order only with the consent of the protected person, and a widening of the admissibility of evidence when hearing an application for a final order. It’s unlikely that an applicant or respondent experiencing the system before and after the new Act would notice much of a change to the process.
It’s worth noting that a court cannot make a final order between parties that already have a family violence intervention order: s 62. I assume this implies a statutory preference for parties who meet the criteria for family violence intervention orders to go under that legislation.
The Act concerning family violence had been the subject of extensive community consultation and debate. It’s fair to say that the Act which related to stalking had not received the same level of scrutiny. The Stalking Intervention Orders Act 2008 was a stop-gap designed to allow the statutory separation of the two types of intervention orders.
The Stalking Intervention Orders Act 2008 was troubled by being required to deal with two very different kind of non-family violence situations. Some complaints concerned allegations of the kind of obsessive predatory behaviour which had given rise to the creation of the criminal offence of stalking found at s 21A of the Crimes Act 1958. It was also called upon to deal with the kinds of repetitive neighbourhood disputes which, in the past, have been dealt with under the common law with binding-over orders or the tort of private nuisance.
The Explanatory Memorandum to the Bill explains [at page 5]:
Under the Stalking Intervention Orders Act 2008 the only ground for an intervention order was stalking. As such, it became a “catch all” provision for other types of behaviour that, although they came within a broad reading of the definition of stalking, were not necessarily pursuit-type stalking. It is intended that only pursuit-type stalking will be covered by the term “stalking” under this Bill.
A new category of conduct called prohibited behaviour describes the non-stalking behaviour that may provide a basis for an order. This is described at s 5 as:
• sexual assault;
• property damage or interference;
• making a serious threat.
Section 47 provides that the court can inform itself as it sees fit when determining an application, regardless of the normal rules of evidence. This is in similar terms to a provision in the Family Violence Prevention Act 2008.
However section 47(3) provides,
(3) The court may refuse to admit, or may limit the use to be made of,
evidence if the court is satisfied-
(a) it is just and equitable to do so; or
(b) the probative value of the evidence is substantially outweighed by the danger that the evidence may be unfairly prejudicial to a party or misleading or confusing.
The Judicial College have produced a Personal Safety Intervention Orders Bench Book. Like its companion, the Family Violence Bench Book, it’s not got much detail yet, but will probably develop over time.