Thursday, 12 June 2008

Domestic violence case: is a distance clause reasonable?

Sometimes courts make domestic violence orders that require the respondent to stay away from the aggrieved, such as staying a certain distance away. In one case in which I was involved many years ago, the apprehended violence order required that the respondent not go to the country town in which my client then lived. The respondent did not live there, but had stalked my client, including calling virtually every business in town, trying to locate my client.

Courts are thus faced with a conundrum. If they impose a distance clause on a respondent to a protection order, does it interfere with the respondent's right to go about their life?

From my experience, some magistrates rarely if ever make a distance clause, because they can be so difficult to enforce. In making an order, the ocurts will also need to consider what is in the Act. In Queensland, for instance, the condition must be both "necessary" and "desirable". Whilst it might be desirable, is the term also necessary.

A good illustration of where a distance clause was considered "necessary" was provided in the recent decision of the Court of Appeal in Washington State, USA in The Marriage of Bahr.

Both husband and wife lived in Lake Tapps, small town USA. The wife related a history of violence and obtaining domestic violence orders for protection. Finally she had had enough and sought a final protection order. This order included a clause that the husband was not to be within 1 mile of her. After the husband's further protestations that he would not be able to visit a nearby lake to water ski or otherwise live "normally," the trial court finally ordered a 500-foot distance restriction.

So if he were at the shops, for example, and she turned up, then he might have to leave.


The husband appealed the order, saying that it interfered with his constitutional freedom of movement. In Australia, by comparison, Justice Kirby in AMS v AIF (1999)said that our society:

attaches high importance to freedom of movement and the right of adults to decide where they will live.


The husband in Bahr said that the 500-foot distance requirement imposed in the modified restraining order is not the least restrictive means of satisfying the state's interest in this case. In addition to his freedom of travel, he argued that the restraining order made his freedom of movement subject to the wife's "whim and caprice." He asserted that "[a]lthough he is free at any time to going to any public place other than her business, she can virtually chase him from such locations by her mere presence."

The Court of Appeal dismissed the husband's appeal. It held:
1.Here, the compelling state interest is the wife's safety and welfare.

2. Additionally, the record shows that the husband need only travel a mere 0.2 miles further from his professed regular routes of travel ...to stay beyond 500 feet from the wife's home and business. And the wife's affidavit shows there is an alternate route from Auburn that bypasses her home and business that is also only 0.2 miles longer. Such minimal distances do not reasonably impose an unconstitutional burden on his freedom of travel.

3. The husband is free to move about as he pleases, and the restraining order only burdens his freedom of movement by occasionally requiring him to leave a public establishment in the Lake Tapps area when the wife happens to be in the same location. As he points out, "he is free at any time to going to any public place other than her business." Appellant's Br. at 15. Although Lake Tapps may be a small community, and however "inevitable" it may be that he occasionally will be required to leave a local establishment when she arrives, an order that occasionally forces him to leave a location earlier than he would prefer does not burden his fundamental freedom of movement in a constitutional sense.

4.Further, even assuming that the husband's rights to movement and travel are actually implicated here, the State may curtail those rights to protect the wife from any "invasive, oppressive and harmful behavior" by him. The record shows that he has acted with violence toward her and her adult son, has harassed and threatened her, and has violated a prior restraining order involving her. He has also displayed his temper in front of her attorney. He has most recently displayed these aggressive tendencies to the trial court itself by interrupting and walking out of the hearing even after the trial court agreed to reduce the distance requirement from one mile to 500 feet. In light of the record before us, the distance requirement in this case is an appropriate least restrictive means to achieve the state's compelling interest in protecting the wife's safety and welfare.

5.In view of the husband's multiple instances of violent and threatening behavior toward the wife reflected in the record the trial court had sufficient evidence to
maintain a 500-foot distance requirement. The trial court did not abuse its discretion in modifying the restraining order to ensure that the husband stayed at least 500 feet from the wife at all times.

No comments: