The Family Violence Protection Amendment Act 2014 makes the following amendments to the Family Violence Protection Act 2008 (the Act):
- extending the operation of family violence safety notices
- establishing a new process for interim family violence intervention orders
- changing the publication restrictions.
The family violence safety notice and publication restriction amendments commenced on 2 November 2014.
The interim order changes have not commenced yet. The default commencement date of the interim order changes has been extended until 1 July 2016, or after the Royal Commission into Family Violence reports to the Government.
Interim family violence intervention orders
An interim family violence intervention order (intervention order) is a temporary order that protects a person (and any children) from a family member who is using family violence. A person protected by an interim order is the protected person and the person against whom the order is made is the respondent.
A court may make an interim order where an intervention order application has been made and the protected person needs immediate protection before the application can be determined by the court. Under the current process, if an interim order is made the matter returns to court for final determination of the intervention order application.
The Family Violence Protection Amendment Act 2014 establishes a new process for some interim orders to become final intervention orders without a further court hearing. This process is established by enabling the court to include a finalisation condition in an interim order.
What is a finalisation condition?
A finalisation condition will result in an interim order automatically becoming a final order 28 days after the interim order is served on the respondent, unless one of the following occurs within that period:
- the respondent contests the intervention order application
- the protected person seeks to withdraw the application
- an application is made to vary or revoke the interim order
- the court varies the interim order on its own motion
If any of the above occur, the matter will return to court for final determination of the intervention order application. Generally, the interim order will continue until this occurs.
When can a court include a finalisation condition?
If not prohibited, the court may include a finalisation condition in an interim order, where appropriate. When determining appropriateness, the court must consider matters such as:
- whether there is a history of family violence
- the existence of recognised family violence risk factors
- the existence of other intervention order proceedings
- the existence of other legal proceedings that may affect the conditions or operation of the intervention order
- the views of any person who applied for the intervention order on behalf of the protected person about including a finalisation condition
- whether the affected family member has obtained legal advice
- whether giving or serving the interim order and a written explanation will enable the affected family member and the respondent to sufficiently understand the order
- the existence of other factors making it desirable that the respondent attend a hearing for the final order.
When is a court prohibited from including a finalisation condition?
A court must not include a finalisation condition in an interim order if:
- the protected person does not consent to a finalisation condition being included
- the respondent is a child
- the respondent has a cognitive impairment
- the respondent holds a firearms authority, or weapons approval or exemption, or has possession of a firearm or prohibited weapon
- the interim order would be inconsistent with a Commonwealth family law order.
Can courts that make counselling orders include finalisation conditions?
The Family Violence Court Divisions at Ballarat and Heidelberg and the Frankston and Moorabbin venues of the Magistrates’ Court can order respondents to final orders to be assessed for and, if eligible, to attend counselling.
These courts must not include a finalisation condition in an interim order if satisfied that, on making a final order, they may be required to order the respondent to have their eligibility for counselling assessed.
What conditions will be included in the final order?
If the court includes a finalisation condition in an interim order, the final order will have the same conditions as the interim order.
How long will the final order operate for?
If the court includes a finalisation condition in an interim order, the court must specify a period for which the final order is to operate.
Are there any requirements for serving an interim order on the respondent?
An interim order that includes a finalisation condition must be served personally on the respondent; otherwise the condition will not take effect. If an interim order that includes a finalisation condition cannot be served personally, the matter will return to court for final decision on the intervention order application. That is, the intervention order application will be dealt with as it is now rather than being dealt with under the new interim order process.
Does a respondent have any options after a finalisation condition takes effect?
A respondent can apply to have a final order varied or revoked, with the leave of the court. The court may grant leave if:
- the respondent did not contest the intervention order application or apply to vary or revoke the interim order within 28 days of being served with the interim order; and
- the court is satisfied that there are exceptional circumstances that justify granting leave.
In certain circumstances, a respondent can apply to have a court hear the matter and make a decision about the final order. These circumstances are if:
- the intervention order application was not personally served on and not brought to the attention of the respondent under an order for substituted service; or
- there are exceptional circumstances and a hearing is fair and just.
If these grounds are established, the court may hear the matter and make a decision about the final order.
Family violence safety notices
A family violence safety notice (safety notice) is a temporary notice issued by the police that protects a person (and any children) from a family member who is using family violence. A person protected by a safety notice is an affected family member and the person against whom the notice is made is the respondent.
A police officer can apply to another officer who is a sergeant or above for a safety notice if the affected family member needs immediate protection before a family violence intervention order (intervention order) application can be determined by a court. Currently, a police officer can only apply for a safety notice if the court is not open.
A safety notice is considered to be:
- an application by the police for an intervention order, and
- a summons for the respondent to attend court for the first time in relation to the intervention order application
The first court attendance for the intervention order application is known as the mention date. Currently, the mention date must be within 120 hours of the safety notice being served on the respondent, or if this is on a public holiday the first working day after that.
The Family Violence Protection Amendment Act 2014 extends the operation of safety notices in two ways.
1. First mention within five working days
The first mention date for an intervention order application commenced by a safety notice has been extended from 120 hours to five working days. This means, for example, that if a safety notice is served on a respondent on Friday, the first mention date must be by the following Friday rather than by the Wednesday.
If a safety notice includes a condition excluding the respondent from the affected family member’s home, the mention date must be as soon as practicable within that five working day period.
2. Safety notices may be issued at any time
A police officer can now apply to a sergeant or above for a safety notice regardless of whether the court is open. This means that safety notices can be issued 24 hours a day, seven days a week; not just when the court is not open.
The Family Violence Protection Act 2008 (the Act) restricts publication of reports about proceedings under the Act and family violence intervention orders (intervention orders) that are likely to lead to the identification of the subjects of intervention orders or any persons involved in the proceedings, unless a publication order has been made.
The court can make a publication order where publication is in the public interest and is just. Currently, the court cannot make a publication order in relation to a matter involving a child. That is, if a child is a party to or a witness in the proceeding, or a child is the subject of the intervention order.
The publication restrictions in the Children, Youth and Families Act 2005 apply to intervention orders made by the Children’s Court and proceedings under the Act in that court. No changes have been made to those publications restrictions.
The Family Violence Protection Amendment Act 2014 makes two main changes to the publication restrictions:
1. Publication by an adult victim or with their consent
This change to the publication restrictions is about reporting of criminal proceedings that involve a family violence safety notice (safety notice) or intervention order. Broadly, in certain circumstances, the change allows:
- publication of a report about contravention of a safety notice or an intervention order
- a report published about another family violence related offence to refer to a safety notice or an intervention order.
This change does not allow publication of any report about the making or alteration of a safety notice or an intervention order outside the context of a criminal offence. This aspect of the law has not changed.
Who can publish a report?
A person who is the adult victim of a relevant offence may publish a report. A relevant offence is:
- a contravention of a safety notice or an intervention order
- another offence where the person’s conduct would have contravened the safety notice or intervention order, but there was no charge, conviction or finding of guilt for a contravention offence
- an offence that led to the making of a safety notice or intervention order.
Another person may also publish a report with the consent of the adult victim.
An adult victim cannot consent to the identification of any other person protected by the safety notice or intervention order, or involved in a proceeding relating to the notice or order.
An adult victim may withdraw their consent before the report is published. A person must not publish a report after an adult victim withdraws their consent. This does not apply where the person did not have a reasonable opportunity to prevent the report being published after consent was withdrawn.
However once a report (the original report) is published, the story can be published again without the specific consent of the adult victim.
When can a report be published?
The original report may be published where a person is charged with, or found guilty or convicted of a relevant offence.
However that original report can only be published if the charge for the relevant offence is pending, or the finding of guilt or conviction for the relevant offence has not been set aside or quashed.
What information can be in the report?
A person may publish permitted content in the original report. Permitted content is:
- that the safety notice or intervention order applies to a person who has been charged with or found guilty or convicted of a relevant offence
- that the adult victim is protected by the safety notice or intervention order and is a victim of the relevant offence
- the type of restrictions imposed by the conditions of the safety notice or intervention order
- details of and conduct constituting the relevant offence.
What happens after the original report is published?
After the original report is published, a further report containing permitted content may be published by either the person who published the original report or another person.
A further report may be published without the consent of the adult victim. However if the person publishing the further report is not the adult victim, the person must reasonably believe that the original report was published with the consent of the adult victim.
How do these changes work in practice?
Following are examples of how publication by or with the consent of an adult victim work in practice. In all examples, it is assumed that there are no other restrictions preventing public reporting, such as a suppression order. It is also assumed that the court has not made a publication order under the Act.
Example 1: contravention of an intervention order
Ron is charged with several contraventions of the intervention order that is in place between him and his wife, Tammy. Ron is convicted of all charges. The convictions have not been set aside or quashed.
In speaking about her experience of family violence at a public forum, Tammy may talk about the intervention order, the types of restrictions included in the intervention order, and details of the contravention of the intervention order.
If Ron’s convictions had been set aside before Tammy spoke at the forum, she could not have spoken about the intervention order.
Example 2: another family violence related offence resulting in an intervention order being made
Ken is arrested and charged with assaulting his former partner, Kay. An intervention order is made on the basis of this incident.
The local newspaper publishes a report on Ken being charged with the assault offence. With Kay’s consent, the report can also state that there is an intervention order in place between her and Ken, and the types of restrictions included in the intervention order. After the original newspaper report is published, Ken is acquitted of the offence. Another newspaper may report on the case, including the information about the intervention order.
If Ken was acquitted before the original newspaper report was published, that report could not have included the intervention order information.
2. Power to make a publication order in a matter involving a child
The second change allows the court to make a publication order in relation to a matter involving a child.
The existing test for making a publication order applies. That is, the court may only make an order if it considers that publication is in the public interest and is just. However when making a publication order in these matters, the court must have regard to the views of any parent or guardian of the child.
For information about family violence intervention orders and what is family violence, visit the Victims of Crime website (External link)
For information about how intervention orders work or help with your legal problem, visit the Victoria Legal Aid website (External link)
The When separating (External link) video series will help you work out what is best for you and your family after separation, including dealing with family violence and getting help in country areas.
The What's the law? series is for people newly arrived to Australia. The videos have simple information about common legal issues based on real life experiences, including:
- family violence (External link)
- child protection and parenting (External link)
- separation and parenting arrangements (External link)
The Magistrates’ Court of Victoria has developed a contested intervention order video (External link) in a mock hearing to inform those involved in intervention order hearings about the court process.