MAGISTRATES' COURT (FAMILY VIOLENCE PROTECTION) AMENDMENT RULES 2018 (SR NO 42 OF 2018)

Victorian Numbered Regulations

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MAGISTRATES' COURT (FAMILY VIOLENCE PROTECTION) AMENDMENT RULES 2018 (SR NO 42 OF 2018) - REG 7

New Forms 4A and 4B inserted

After Form 4 of the Principal Rules insert —

' FORM 4A

Rule 4.09

EXPLANATION OF INTERIM FAMILY VIOLENCE INTERVENTION ORDER

What is an interim order?

1. An interim order is a temporary family violence intervention order made by the Magistrates' Court or the Children's Court to protect a person from family violence until the court can decide whether to make a final order. An interim order prevents a respondent from behaving in certain ways, or requires the respondent to do certain things, stated on the order.

2. An interim order is a civil order, and making an interim order does not necessarily mean that an offence has been committed. However contravention of an interim order is an offence punishable by imprisonment or a fine or both. See item 8.

Who are the parties to an interim order?

3. The "affected family member" is the person who needs the protection of the order. After an interim order is made, an "affected family member" is called a "protected person".

4. The "applicant" is the person who applies for the family violence intervention order. The applicant may be the affected family member, or the applicant could be another person, such as a police officer. Section 45 of the Family Violence Protection Act 2008 lists the people who can apply for a family violence intervention order.

5. The "respondent" is the person against whom an application for a family violence intervention order or an order has been made.

6. The respondent, the applicant and the adult protected person(s) will be given copies of the interim order. This is called being "served" with the order.

What happens if the respondent disobeys an interim order?

7. The respondent must obey all of the conditions listed in the order at all times.

8. If the respondent disobeys or "breaches" a condition in the order this means the respondent has "contravened" the order. In Victoria a contravention of an interim order is an offence punishable by 2 years imprisonment or a fine of 240 penalty units** or both. In some circumstances, a higher penalty of 5 years imprisonment or a fine of 600 penalty units** or both may apply. For example, where—

(a) the respondent contravenes the order 3 or more times within a 28 day period; or

(b) the respondent contravenes the order intending to cause harm or fear for safety, or knowing that the conduct will probably cause harm or fear for safety.

What if the protected person gives permission to contravene the order?

9. In Victoria a person cannot permit another person to contravene an order of the court. This means that, even if the protected person allows a respondent to disobey the order, the respondent would still commit an offence.

10. It is not a defence that the protected person consented to the behaviour that contravened an interim order.

How long does an interim order last?

11. An interim order ends when one of the following occurs—

(a) the court makes a final order;

(b) the court makes a final order and it is served on the respondent;

(d) the court revokes the interim order; or

(e) the application for the family violence intervention order is withdrawn.

When does the court make a decision about the final order?

12. The respondent, the protected person and any other parties (for example, the police) will be notified of the next court date when served with the application for the family violence intervention order and the interim order.

13. The court may make a final order on the next court date if—

(a) the parties agree to a final order being made by the court;

(b) the parties do not oppose the making of a final order; or

(c) the respondent does not attend court and the court is satisfied that the respondent has been served with a copy of the application for a family violence intervention order and the court is satisfied the evidence supports the making of a final order.

14. The conditions of the final order may be the same or different to those included in the interim order, family violence safety notice or application for a family violence intervention order.

15. The final order may protect children who have been subjected to family violence by the respondent even if those children are not referred to in a family violence safety notice or an application for a family violence intervention order.

16. If either party, or both parties, oppose the court making a final order, the court will fix a new court date ("a contested hearing date") and the interim order will continue until that date. On this later date the parties and all their witnesses can come to court to give their evidence to the magistrate.

17. Special rules apply if the respondent wants to ask questions or challenge the evidence of protected witnesses, such as the affected family member or a child (called "cross-examination"). Section 70 of the Family Violence Protection Act 2008 lists other people who are protected witnesses. To cross-examine a protected witness, the respondent will need to have a lawyer at court. It is important to get legal advice about this. See the end of this notice for information about how to arrange legal advice.

18. After the magistrate has heard relevant evidence from the parties, the magistrate will decide whether to make a final order and, if so, what conditions should be included in the final order and how long the final order will last.

Can the interim order be varied?

19. Yes. The protected person, respondent or applicant, for example, can apply to have the interim order changed. Section 108 of the Family Violence Protection Act 2008 lists the people who can apply to have the interim order changed.

20. If the respondent wants the interim order changed, the respondent cannot apply without the leave of the court. The magistrate must be satisfied there has been a change in circumstances since the interim order was made and that the change may justify a change to the interim order before granting leave.

21. An application may also be made to change an interim order to a court in any other State or a Territory that has enacted the corresponding DVO recognition laws. See item 26.

What if there is a Family Law Act order?

22. If there is a Family Law Act order in force, the magistrate who made the interim order may have changed or suspended the Family Law Act order if it was inconsistent with the interim order. The magistrate may have also revived the Family Law Act order. The purpose of the change, suspension or revival of the Family Law Act order is to prevent the respondent from committing family violence against a protected person (including preventing a child hearing or witnessing violence).

23. If the magistrate has made an interim order that affects a Family Law Act order, that order will continue until the return date of the interim order or for 21 days, whichever is sooner.

24. Speak to a lawyer about how any Family Law Act order and your interim order interact.

What if there is an order made under the Children, Youth and Families Act 2005 ?

25. The interim order applies despite any child protection order made by the Children's Court. Speak to a lawyer about how any child protection order and your interim order interact.

Can an interim order be enforced in another State or a Territory?

26. Yes. Under the National Domestic Violence Order Scheme Act 2016 , a Victorian interim order may be enforced against the respondent in any other State or a Territory that has enacted a corresponding DVO recognition law. These States and Territories have enacted corresponding DVO recognition law: Victoria, Tasmania, New South Wales, Australian Capital Territory, Queensland, Northern Territory, Western Australia and South Australia.

Contacts

Legal advice

Victoria Legal Aid provides free legal advice and referrals.

Website: www.legalaid.vic.gov.au

Federation of Community Legal Centres may have a centre close to you that can provide advice.

Website: www.communitylaw.org.au

Women's Legal Service Victoria provides free legal advice by telephone concerning family violence and family law.

Website: www.womenslegal.org.au

Key support services

Safe Steps Family Violence Response Centre provides crisis support and referrals for women experiencing family violence.

Website: www.safesteps.org.au

inTouch Multicultural Centre Against Family Violence provides support for immigrant women who are victims of family violence.

Website: www.intouch.org.au

Elizabeth Morgan House Aboriginal Women's Service provides crisis accommodation and support for Aboriginal women and spouses of Aboriginal men.

Website: www.emhaws.org.au

The following support services are available to help men who use violence towards their families—

No to Violence incorporating the Men's Referral Service

Website: www.ntvmrs.org.au

The Men's Referral Service is a statewide service which provides free and independent advice about what men can do. This anonymous and confidential service can provide suggestions about where to go for more assistance.

Salvation Army Crisis Service

Website: www.salvationarmy.org.au

The Crisis Service is a statewide service available by telephone for people in need of support. The service provides information, advocacy, referrals for accommodation, material aids and links to counselling and other support services.

Local courts and police may have other local referral information for support services in your area.

** Note : The value of a penalty unit can be found at www.magistratescourt.vic.gov.au.

__________________

FORM 4B

Rule 4.10

EXPLANATION OF FINAL FAMILY VIOLENCE INTERVENTION ORDER

What is a final family violence intervention order?

1. A final family violence intervention order is an order made by the Magistrates' Court or the Children's Court to protect a person from family violence. A final order prevents a respondent from behaving in certain ways, or requires the respondent to do certain things, stated on the order.

2. A final order is a civil order, and making a final order does not necessarily mean that an offence has been committed. However contravention of a final order is an offence punishable by imprisonment or a fine or both. See item 8.

Who are the parties to a final family violence intervention order?

3. The "affected family member" is the person who needs the protection of the order. After a final order is made, an "affected family member" is called a "protected person".

5. The "respondent" is the person against whom an application for a family violence intervention order or an order has been made.

6. The respondent, the applicant and the adult protected person(s) will be given copies of the final order. This is called being "served" with the order.

What happens if the respondent disobeys a final family violence intervention order?

7. The respondent must obey all of the conditions listed in the order at all times.

8. If the respondent disobeys or "breaches" a condition in the order this means the respondent has "contravened" the order. In Victoria a contravention of an order is an offence punishable by 2 years imprisonment or a fine of 240 penalty units** or both. In some circumstances, a higher penalty of 5 years imprisonment or a fine of 600 penalty units** or both may apply. For example, where—

(a) the respondent contravenes the order 3 or more times within a 28 day period; or

(b) the respondent contravenes the order intending to cause harm or fear for safety, or knowing that the conduct will probably cause harm or fear for safety.

What if the protected person gives permission to contravene the order?

10. It is not a defence that the protected person consented to the behaviour that contravened a final order.

How long does a final order last?

11. A final order lasts for the period the court specifies in the order. If the order says it will last "until further order" it lasts until it is revoked by the court or set aside on appeal.

12. The court can extend a final order but this requires a further application to the court. The magistrate may order an extension if the magistrate is satisfied the respondent is likely to commit family violence against the protected person if the duration of the final order is not extended.

13. An application may also be made to extend a final order to a court in any other State or a Territory that has enacted a corresponding DVO recognition law. See item 34.

14. A protected person should seek legal advice before the final order ends about whether to apply for an extension.

Can a final family violence intervention order be varied or revoked?

15. Yes. The protected person, respondent or applicant, for example, can apply to have the final order varied or revoked. Section 108 of the Family Violence Protection Act 2008 lists the people who can apply to have the final order varied or revoked.

16. If the respondent wants the final order varied or revoked, the respondent cannot apply without the leave of the court. The magistrate must be satisfied there has been a change in circumstances since the final order was made and that the change may justify varying or revoking the final order before granting leave.

17. An application may also be made to vary or revoke a final order to a court in any other State or a Territory that has enacted a corresponding DVO recognition law. See item 34.

What if there is a Family Law Act order?

18. If there is a Family Law Act order in force, the magistrate who made the final order may have changed or suspended the Family Law Act order if it was inconsistent with the final order. The magistrate may have also revived the Family Law Act order. The purpose of the change, suspension or revival of the Family Law Act order is to prevent the respondent from committing family violence against a protected person (including preventing a child hearing or witnessing violence).

19. Speak to a lawyer about how any Family Law Act order and your final order interact.

What if there is an order made under the Children, Youth and Families Act 2005 ?

20. The final order applies despite any child protection order made by the Children's Court. Speak to a lawyer about how any child protection order and your final order interact.

Does the final order prohibit contact between the respondent and a child?

21. If the protected person or respondent is a parent of a child, the court may have included a condition in the final order preventing the respondent from living with, spending time with or communicating with the child.

22. The court must include this condition in a final order if the magistrate decides that it may risk the safety of the child or the protected person if the child were allowed to live with, spend time with or communicate with the respondent.

If contact is not prohibited, does the final order include conditions about arrangements for contact between the respondent and a child?

23. The court may have included a condition in the final order for the making of arrangements about the child living with, spending time with or communicating with the respondent ("children's arrangements").

24. This condition requires that any children's arrangements (including arrangements for the handover of a child) must be agreed in writing, unless the condition allows another method. The condition must also set out how children's arrangements are to be negotiated in order to maximise the safety of the protected person.

Firearms and weapons

25. A respondent to a final order is a prohibited person under the Firearms Act 1996 and the Control of Weapons Act 1990 while subject to the order and for a period of 5 years after being subject to the order.

26. It is an offence for a prohibited person to possess, use or carry a firearm, a silencer or any other prescribed item under the Firearms Act 1996 .

27. A weapons exemption under the Control of Weapons Act 1990 cannot be granted to a prohibited person and, if the exemption applies to a class of persons, does not apply to a prohibited person. A prohibited person cannot be granted a weapons approval, and it is an offence for an employer to employ a prohibited person to carry out duties for which a weapons approval is required.

28. Being subject to a final order may also have consequences for a respondent's access to firearms and weapons and associated licences, permits or authorities in other States or Territories.

Effect of firearms or weapons condition

29. If the respondent holds a firearms licence or a weapons approval, or a weapons exemption applies to the respondent, the final order may have included a specific condition cancelling the respondent's firearms licence, or revoking the weapons approval or exemption ("a firearms or weapons condition").

30. If the court has included a firearms or weapons condition in a final order, the respondent cannot make an application under the Firearms Act 1996 to be deemed not to be a prohibited person.

31. If the court has included a firearms or weapons condition in a final order, the respondent can apply, with leave of the court, for a revocation or variation of the final order to remove the firearms or weapons condition. An application for revocation or variation of a final order must be made while the order is in force. A final order cannot by revoked or varied to remove a firearms or weapons condition after the order has expired.

32. If the court has not included a firearms or weapons condition in a final order, or has varied the final order to remove a firearms or weapons condition, the respondent can apply under the Firearms Act 1996 to be deemed not to be a prohibited person.

33. Other States and Territories may recognise a firearms or weapons condition included in a final order. If so, this will have consequences for a respondent's access to firearms and weapons licences, permits or authorities in those States and Territories.

Can a final order be enforced in another State or a Territory?

34. Yes. Under the National Domestic Violence Order Scheme Act 2016 , a Victorian final order may be enforced against the respondent in any other State or a Territory that has enacted a corresponding DVO recognition law. These States or Territories have enacted a corresponding DVO recognition law: Victoria, Tasmania, New South Wales, Australian Capital Territory, Queensland, Northern Territory, Western Australia and South Australia.

Can a final order be enforced in New Zealand?

35. Yes. A Victorian final order may be enforced in New Zealand if registered. If it is registered, the final order may be enforced under the law of New Zealand relating to protection from family or domestic violence.

36. If a protected person wishes to be protected by a Victorian final order in New Zealand they should contact the local court in that jurisdiction about what to do to register the order.

37. Respondents travelling to New Zealand should check with the local court to see if a Victorian final order has been registered in that jurisdiction.