Restrained after a coercive control charge, without a guilty finding

How the restraint provisions work

The sequence is short.

1. A person is charged with the coercive control offence and there is a hearing before a court in connection with that charge.
2. How that hearing ends does not matter. Guilty, not guilty, withdrawn, discontinued. The power is available either way.
3. Police, the court itself, or an interested person can apply for orders restraining the defendant’s conduct.
4. A separate hearing follows. The court can make a restraining order if it considers it desirable to do so.
5. Where facts are in dispute at that hearing, they are decided on the balance of probabilities, not beyond reasonable doubt.
6. The order can restrain the person in relation to any person or any property, for a set period.
7. Knowingly contravening the order is an offence.

Our article on the criminal standard of proof explains why step 5 does so much work.

What the provisions are trying to do

The apparent purpose is legitimate. A criminal penalty punishes past conduct. It does not stop conduct continuing.

Where a pattern of controlling behaviour is established but the criminal standard is not met, the argument runs that the person at risk still needs protection, and a restraining order provides it.

That is a coherent position. The problems are in the execution.

Problem one: the discretion has no guardrails

The test at both stages, referral and making the order, is whether the court considers it desirable.

That is not a test. It is a delegation. There is no statutory list of considerations, no threshold of seriousness and no requirement that the restrained conduct be connected to the charge that generated the hearing.

Until a body of appellate authority develops, it is genuinely unpredictable what a court will do with it. That is a difficult position for anyone advising a client on whether to contest a referral.

Problem two: the second bite

The lower standard of proof at the restraint hearing creates an obvious incentive.

1. Police consider charging someone with coercive control but assess the prospects of proving the elements beyond reasonable doubt as poor.
2. They know the charge is the gateway to a restraint hearing, where the standard is the balance of probabilities.
3. The charge is laid anyway.

We are not saying that is what will routinely happen. We are saying the structure permits it, and that a structure which rewards laying a weak charge is a badly designed structure. It is the same criticism we make of protection order applications in our article on DVO statistics.

Problem three: breach is criminal

In ordinary civil proceedings, breaching an order is serious but is dealt with through contempt, and a judge decides what should follow.

Here, knowingly contravening a restraining order is a discrete offence carrying imprisonment.

So an order made on the balance of probabilities, on a test of desirability, in a proceeding that may have ended with the charge being withdrawn, is enforceable by a criminal conviction. That is a long way from where the process started.

Problem four: the restrained conduct need not be unlawful

The heading of the relevant provision refers to restraining coercive control. The operative text is not so limited.

The court can restrain the person in relation to any person or any property. There is no requirement that the restrained conduct be criminal, unlawful, or even within the broad definition of domestic violence used elsewhere in Chapter 29A.

That raises practical questions nobody has answered yet. Will applications be brought to restrain conduct that is merely unpopular or antisocial? Will courts make those orders, given how wide the discretion is?

We would like to think not. The legislation permits it, so it will be tested.

What to do if a referral is made

Treat the restraint hearing as a proceeding in its own right, not an afterthought to a criminal charge that has ended.

• The application must identify the conduct sought to be restrained. Make it do so with precision, because vague orders are the ones people breach without realising.
• Facts are contested on the balance of probabilities, which means evidence, not submissions. Prepare it.
• The duration matters as much as the terms. A five year order attached to a withdrawn charge is worth arguing about.
• Check every proposed condition against any parenting order, property arrangement or employment obligation you have.

See our page for coercive control matters.