Children's Court of Victoria - Research Materials

has used or threatened violence towards another person or his or her property or has stalked a person ('the victim'); and
is likely to do so again.

The primary purpose of an intervention order is to regulate future conduct of the respondent and in family violence cases of one or more associated respondents:
towards the victim; and/or
in relation to children who are likely to be subjected to such conduct; and/or
in family violence cases - towards one or more associated victims.

Powers of court until 07/12/2008 derive from the CFVA

Until 07/12/2007 a court's power to make, vary, extend or revoke an intervention order or an interim intervention order derived from the Crimes (Family Violence) Act 1987 (Vic) [No.19/1987] [as amended] ('the CFVA') and from s.21A(5) of the Crimes Act 1958 (Vic) [No.6231] [as amended by s.3 of Act No.95/1994].

Powers of court from 08/12/2008 derive from the FVPA and the SIOA

As and from 08/12/2008 the CFVA has been repealed and has been replaced-

insofar as it relates to family violence intervention orders by the Family Violence Protection Act 2008 (Vic) [No.52/2008] (‘the FVPA’); and
insofar as it relates to stalking intervention orders by the Stalking Intervention Orders Act 2008 (Vic) [No.68/2008] (‘the SIOA’).

The repeal provision is in s.212 of the FVPA.

A court’s powers to make, vary, extend or revoke a family violence intervention order or interim intervention order derive primarily from-

ss.53, 74, 100 & 106 of the FVPA; and
ss.7, 13 & 25-28 of the SIOA.

Since there is a very significant difference between the procedures and powers under the FVPA and the SIOA, discussion of most aspects of the two types of intervention orders has been split into separate subchapters. The FVPA is summarised in sub-chapter 6A and the SIOA in sub-chapter 6B.

Transitional provisions in the FVPA and the SIOA

FVPA and ss.57-60 of the SIOA is to deem intervention orders, interim intervention orders, counselling orders, applications and proceedings under the CFVA to be orders, applications and proceedings under the FVPA or the SIOA as the case may be. However, if proceedings under the CFVA for an intervention order, an interim order, the variation, revocation, extension or breach of an order or an appeal had been started but had not yet been finalised by the commencement date, the proceeding may continue under the CFVA as if it had not been repealed: see s.219 of the FVPA and s.61 of the SIOA.

Section 221 of the FVPA provides that acts committed before the commencement day of that Act are relevant to proceedings under the CFVA.

Jurisdiction of the Children’s Court of Victoria

Under the CFVA 01/12/1987 - 28/05/1990

Prior to 29/05/1990 the Children's Court had no jurisdiction to hear and determine applications for intervention orders. As originally enacted, s.4(1) of the CFVA conferred power on a 'court' to make an intervention order and 'Court' was defined in s.3 as "a Magistrates' Court". Section 7(c) of the CFVA provided that if the victim was a child, various persons could make a complaint for an intervention order on his or her behalf. It is clear that such a complaint was to be heard in the Magistrates’ Court. There were no provisions in the CFVA referring to a child respondent.

Under the CFVA 29/05/1990 – 07/12/2008

On 29/05/1990 the CFVA was amended by the Crimes (Family Violence)(Amendment) Act 1990 (Vic) [No.17/1990]. The major amendment was the addition of s.3A, entitled “Jurisdiction of Children’s Court”. At first glance the introduced sections 3A(2) & 3A(3) of the CFVA may appear to have granted the Children’s Court power to determine any intervention order applications which have been transferred to it by the Magistrates' Court. However it is clear from s.1 of the Crimes (Family Violence)(Amendment) Act 1990 (Vic) that that is not so, for that section (with the age amended from 17 to 18 as from 01/07/2005} provides:

“(1) The main purposes of this Act are to amend the CFVA so as…(a) to confer concurrent jurisdiction under that Act on the Children’s Court if either the aggrieved family member or the respondent is under the age of 18 years…"

A related amendment - made by s.5(4)(b) of the amending Act - was to add what is now s.515(2) of the Children, Youth and Families Act 2005 (Vic) [No.96/2005] (‘the CYFA’): "The jurisdiction given by section 515(1) is additional to the jurisdiction given to the Family Division…by the CFVA." There is nothing else in the CYFA - including s.528 - which confers on the Children’s Court jurisdiction to make intervention orders. Section 528(1) provides: “The [Children’s] Court has and may exercise in relation to all matters over which it has jurisdiction all the powers and authorities that the Magistrates’ Court has in relation to matters over which it has jurisdiction.” It follows that s.528(1) does not confer jurisdiction. It simply confers the powers necessary to give effect to the Court's otherwise conferred jurisdiction.

It thus appears that ss.3A(2) & 3A(3) of the CFVA are merely transfer provisions which do not confer power on the Magistrates’ Court itself to confer jurisdiction on the Children’s Court in any case which falls outside s.3A(1) of the CFVA. Hence, the effect of s.3A of the CFVA is that:

the Magistrates' Court retains full jurisdiction in relation to intervention orders, whatever the age of victim or respondent; but
the Children's Court has concurrent jurisdiction only where either the victim or the respondent is a 'child' within the meaning of s.3 of the CFVA, i.e. under 18 years of age at the time the relevant application is made.

From 08/12/2008

From 08/12/2008 the jurisdiction of the Children’s Court remains unchanged in relation to stalking intervention orders under the SIOA but the FVPA gives the Children’s Court a broader jurisdiction in relation to family violence intervention orders.

Section 234 of the FVPA and s.64 of the SIOA amend the definition of “child” in s.3(1) of the CYFA by adding:

“(aa) in the case of a proceeding under the FVPA, a person who is under the age of 18 years when an application is made under that Act;

(ab) in the case of a proceeding under the SIOA, a person who is under the age of 18 years when an application is made under that Act.”

Section 515(2) of the CYFA [as amended by s.236 of the FVPA and s.65 of the SIOA] provides that the Family Division of the Children’s Court has jurisdiction to hear and determine an application under the CFVA or the SIOA.

Under the FVPA

Section 146(1) of the FVPA gives the Children’s Court and the Magistrates’ Court concurrent jurisdiction to hear and determine an application under the FVPA if the affected family member, the protected person or the respondent is a child {i.e. under the age of 18 years} at the time the application is made. Section 146(2) provides that if the respondent is a child the application should, if practicable, be dealt with by the Children’s Court.

Section 147 of the FVPA gives the Children’s Court additional power to deal with related applications and related orders involving adults. This welcome added jurisdiction was not available under the CFVA. Section 147(3) defines “related application” as an application for an order on the grounds of the same or similar circumstances, and includes an application to vary, revoke or extend an order. It also defines “related order” as an order made on the grounds of the same or similar circumstances. Sections 147(1) & 147(2) provide that if-

the Children’s Court also has jurisdiction under the FVPA in relation to the related application or related order.

Section 149(1) of the FVPA gives a court jurisdiction to revoke, vary or extend a family violence intervention order or a counselling order made by it or any other court. However, under ss.149(2) & 149(3), the Magistrates’ Court or the Children’s Court may revoke, vary or extend a FV intervention order confirmed or varied by the County Court or Supreme Court on appeal only if there are new facts or circumstances relevant to the order. Notwithstanding the broad wording of s.149(1) and the wide definition of “court” in s.4 of the FVPA, the writer is of the view that the Children’s Court does not have jurisdiction to deal with an application to revoke, vary or extend a family violence intervention order unless-

at least one of the parties is a child at the time the application was made; or
the application is a “related application”.

Section 148 enables applications under the FVPA to be transferred from the Magistrates’ Court to the Children’s Court or vice versa if the transferring court considers it appropriate in all of the circumstances of the case.

Under the SIOA

Although the jurisdiction of the Children’s Court under the FVPA has been broadened to include related applications and related orders involving adults, no broadening has been made in relation to stalking intervention orders under the SIOA. Sections 6(1) to 6(4) of the SIOA are to the same effect as s.3A(1) to 3A(4) of the CFVA and provide:

Sections 6(5) & 6(6) confer power on the Magistrates’ Court or Children’s Court to revoke, vary or extend a stalking intervention order confirmed or varied by the County Court or the Supreme Court on appeal but only if there are new facts and circumstances relevant to the order.

At first glance sections 6(2) & 6(3) of the SIOA may appear to have granted the Children’s Court power to determine any intervention order applications made to it or transferred to it by the Magistrates' Court whether or not a party is a child. However ss.6(2) & 6(3) are effectively identical to ss.3A(2) & 3A(3) of the CFVA which – as discussed above – were limited by s.1 of the Crimes (Family Violence)(Amendment) Act 1990 (Vic) to applications in which at least one of the parties was a “child”, i.e. under 18 years of age a the time the application was made.

It follows in the writer’s view that ss.6(2) & 6(3) of the SIOA are merely transfer provisions giving-

the Magistrates’ Court power to transfer an application to the Children’s Court if it considers that, in all the circumstances of the case, the matter should be dealt with by the Children’s Court;
the Children’s Court reciprocal power to transfer an application to the Magistrates’ Court if it considers that, in all the circumstances of the case, the matter should be dealt with by the Magistrates’ Court.

But these are not jurisdictional provisions. They do not confer power on the Magistrates’ Court itself to confer jurisdiction on the Children’s Court in any case which falls outside s.6(1) of the SIOA. The SIOA has left unchanged the jurisdiction of the Children’s Court in relation to applications in relation to stalking intervention orders.

Concurrent criminal proceedings no bar to making intervention order

A court may make an intervention order, interim intervention order or counselling order in respect of a person even though the person has been charged with an offence arising out of the same conduct referred to in the application. See s.155 of the FVPA and s.24 of the SIOA.

Proceedings for intervention orders are civil in nature

Proceedings for an intervention order are civil, not criminal, in nature: Gunes v Pearson; Tunc v Pearson (1996) 89 A Crim R 297; Hickman v Smith & Anor [2003] VSC 126 {MC14/03} at [17]-[19]; Miles v Barca [2003] VSC 376 at [23]; Fisher v Fisher [1988] VR 1028. Some of the changes in terminology in both the FVPA and the SIOA are intended to emphasize this. For example “applicant” replaces “complainant”, “respondent” replaces “defendant”, “contravention” replaces “breach”.

Representation of children in intervention order proceedings

Guidelines for child legal representatives are contained in Louise Akenson's "Guidelines for Lawyers Acting for Children and Young People in the Children's Court". See also “Representing Children and Young People – A Lawyers Practice Guide” by Lani Blackman (Victoria Law Foundation, 2002).

In relation to the representation of children, there is a conflict in policy between s.524 of the CYFA and s.62 of the FVPA and a patent inconsistency where a child is neither the applicant nor the respondent to proceedings in relation to a family violence intervention order. To the extent of any inconsistency, it is the writer’s view that s.62, being the later enactment, prevails.

Rule 1.09(1) provides that subject to the FVPA and the CYFA, a party may appear in person or with legal representation.

Under s.524 of the CYFA

Section 524(1)(a) of the CYFA gives the Children's Court power to adjourn a proceeding for an intervention order if a child is not separately legally represented. An intervention order proceeding is not one of the proceedings listed in s.525(1) for which it is mandatory that a child be represented. However, it is usual at the Melbourne Children's Court for a child to be provided with a duty solicitor if the child is aged 7 or more, whether the child is a respondent or a victim and whether or not the application has been taken out by a parent or other adult on the child's behalf. This is to ensure that the child has his or her own voice in the proceeding.

Section 524(8) prohibits a parent from representing a child but permits the Court to grant leave to a non-lawyer, other than a parent, to represent the child.

Sections 524(9) & 524(10) of the CYFA require a person representing a child in the Family Division of the Children's Court to "act in accordance with any instructions given or wishes expressed by the child so far as it is practicable to do so having regard to the maturity of the child". It is clear from ss.524(9)-(10) that the Victorian legislature has generally adopted 'the traditional model' for child representation, a model which requires the advocate to argue a case strictly upon the child's instructions {ALRC Issues Paper #18, [3.12] p.18}. This is the converse of the situation in the Family Court of Australia where 'separate' child representation under ss.68L & 68LA of the FLA are based on 'the best interests model', a model which requires the advocate to present and argue his or her own professional view as to the child's best interests, even if this is inconsistent with the child's expressed wishes on the issue {ALRC Issues Paper #18, p.19}. However, in exceptional circumstances, if the Court determines that it is in the best interests of a child who is not mature enough to give instructions for the child to be legally represented in any proceeding in the Family Division, s.524(4) empowers the Court to adjourn the hearing to enable that legal representation to be obtained. A legal practitioner representing a child in those circumstances must act in accordance with what he or she believes to be in the best interests of the child and, to the extent that it is practicable to do so, must communicate to the Court the instructions given or wishes expressed by the child.

Under s.62 of the FVPA where child is not an applicant or respondent

Section 62(1) of the FVPA provides that if an affected family member in the proceeding is a child and is not the applicant, the child may have legal representation in the proceeding only if the court, on its own initiative-

(a) considers it appropriate in all the circumstances of the case; and

(b) gives leave for the child to be represented.

Section 62(2) of the FVPA provides that in deciding whether to grant such leave, the court must have regard to-

Statistics

The number of applications for intervention orders finalised state-wide in the Children’s Court is shown in the table below. In each year approximately half of applications resulted in a final intervention order being made. The balance were either struck out - often due to non-appearance of the applicant - or withdrawn by the applicant or, in a small percentage of cases, refused. In the Children’s Court a withdrawal of an application is often associated with the respondent providing an undertaking not to engage in proscribed conduct against the victim. The number of interim orders made is not available but may be presumed to be significantly greater than the number of final orders made.

There has been a significant increase in the number of applications over the 8 years shown. Reversing an earlier trend, the percentage of these in which the victim is a family member rather than a victim of stalking has significantly increased since 2000/01.

Undertakings

In proceedings for an intervention order, it is not uncommon for the applicant to seek to withdraw an application upon the respondent giving an undertaking to the Court not to engage in certain nominated conduct against a victim. This is particularly common in the Children’s Court in cases where the respondent is a child. There is no express power in either the FVPA or the SIOA for proceedings to be determined in this way nor was there any express power in the CFVA. It follows that such an undertaking is not enforceable other than through any residual common law or other statutory power the Children’s Court or the Magistrates’ Court may have in relation to failure to comply with an undertaking given to the Court. The writer is not aware of proceedings for breach of such an undertaking ever having been instituted in the Children’s Court. In practice, what a proved breach of an undertaking does provide is potent evidence in support of any new application for an intervention order by that applicant against that respondent.

FAMILY VIOLENCE PROTECTION ACT 2008

Background to the FVPA

The FVPA was introduced into the Victorian Parliament on 24/06/2008. It was passed on 12/09/2008 and was assented to on 23/09/2008. Its commencement date was 08/12/2008.

The FVPA replaces and repeals the 21 year old CFVA. It adopts the majority of the recommendations of the Victorian Law Reform Commission Review of Family Violence Laws Report (February 2006). The Report noted that there had not been a comprehensive review of the Crimes (Family Violence) Act 1987 since its inception to determine whether it provides the best legal response to family violence. Since 1987, attitudes to family violence have changed with “increased public recognition of family violence as a social problem and a burgeoning body of research about its broad nature, dynamics and effects” [p.3]. The Report also noted that new legislation to address family violence has also been enacted in other Australian states and overseas jurisdictions allowing the VLRC an opportunity to learn from different approaches.

The FVPA is more complex and prescriptive than the CFVA. Part of the explanation for this is that the VLRC noted significant variation in attitudes and approaches of Victorian magistrates to family violence. The VLRC attributed this partly to lack of guidance from the current legislation on matters that should be taken into account when deciding an intervention order application and partly to different levels of understanding about family violence: see p.175 of the VLRC Report.

Preamble & Purpose Provisions of the FVPA

The FVPA contains a lengthy preamble that sets out the context in which the Act is to be interpreted and can be used to clarify any ambiguity: see s.35 of the Interpretation of Legislation Act 1984 (Vic). In his Second Reading Speech (at p.80) the Attorney-General said:

“This preamble will ensure that those using, applying or subject to this legislation have a shared understanding of what family violence is, and why it must be prevented. It will promote consistency in the justice system and guide training and implementation initiatives.”

The preamble states that the Parliament of Victoria recognises that-

The preamble also states that Parliament recognises the following features of family violence-

It will be interesting to see whether statement (a) above proves to be compatible with the Charter of Human Rights and Responsibilities Act 2006 (Vic), especially ss.8 & 24.

Section 1 of the FVPA states that the purpose of the Act is to-

Meaning of “family violence”

For the purposes of the FVPA, family violence is defined in s.5(1) of the FVPA as-

The Explanatory Memoradum accompanying the FVPA states (at p.3) that a respondent does not need to intend a child to hear, witness or otherwise be exposed to family violence. It is sufficient if any of these things result from the respondent’s action.

Section 5(2) provides a non-exhaustive list of examples of behaviour constituting family violence-

Section 5(3) makes it clear that behaviour may constitute family violence even if it would not constitute a criminal offence.

In the FVPA “assault” has the same meaning as in s.31 of the Crimes Act 1958 (Vic). Section 5 of the FVPA lists a number of examples of behaviour constituting exposure of a child to family violence. For an analysis of the word "threat" in s.4(1) of the predecessor CFVA, see the judgment of Bongiorno J in Kirby v Phelan [2003] VSC 43 {MC02/03} at [12]-[15].

Meaning of economic abuse

Section 6 of the FVPA defines economic abuse as behaviour that is coercive, deceptive or unreasonably controls another person without that person’s consent-

A number of examples of economic abuse are set out in this section, including coercion to relinquish control over assets and income, coercion to claim social security payments, removing or keeping or threatening to remove or keep a family member’s property without permission and coercion to sign a contract.

Meaning of emotional or psychological abuse

Section 7 of the FVPA defines emotional or psychological abuse as behaviour towards a person that torments, intimidates, harasses or is offensive to the person.

A number of examples of emotional or psychological abuse are set out in this section. As the Explanatory Memorandum notes, these examples have been drawn, in part, from findings of research into family violence which show that these forms of emotional or psychological abuse are particularly common in violent relationships. The examples are-

repeated derogatory taunts, including racial taunts;
threatening to disclose a person’s sexual orientation without consent;
threatening to withhold medication;
prevention of contact with family, friends or culture;
threatening to commit suicide or self-harm with the intention of tormenting or intimidating a family member;
threatening the death or injury of another person.

Meaning of “safety”

Section 4 defines “safety” as used in the FVPA as “safety from family violence”.

Meaning of “property”

Section 4 defines “property” in relation to a family member as used in the FVPA as including-

Affected family member/Protected person

A person who under the CFVA was referred to as an “aggrieved family member” is referred to in the FVPA as an “affected family member” until a police safety notice is issued or an intervention order is made. Thereafter the person is referred to as a “protected person”.

There are three categories of affected persons who may be protected by a family violence intervention order-

Family member

"Family member" is very broadly defined in ss.8 & 10 of the CFVA as a person having any of the following relationships with the respondent-

In his Second Reading Speech (at p.80) the Attorney-General said that the last mentioned category “is designed to cover those relationships which may not be strictly family but which are so close that the dynamics of the relationship are family-like” and “any violence in the relationship approximates the features of family violence”.

"Domestic partner" of the respondent is defined in ss.9(1) & 9(2) of the FVPA as-

Under s.9(3) of the FVPA “domestic partner” does not include-

a person who provides domestic support and personal care to the respondent for fee or reward or on behalf of another person or organization; or
a co-tenant.

Section 9(4) provides that in deciding whether persons who are not in a registered relationship are domestic partners, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in s.35(2) of the Relationships Act 2008 (Vic) as may be relevant in a particular case.

Child subjected to family violence - Additional protection of children

“Child” is defined in s.3(1) of the FVPA as “a person who is under the age of 18 years”.

Under ss.53(1)(a)(iii) of the FVPA the court may make an interim order if satisfied on the balance of probabilities that an interim order is necessary pending a final decision about the application in order to protect a child who has been subjected to family violence committed by the respondent.

Before making a final intervention order under ss.74 or 76 of the FVPA, s.77(1) requires the court to consider whether there are any children who are family members of the affected family member or the respondent who have been subjected to family violence committed by the respondent. Section 77(2) makes it clear that the power in s.77(1) is exercisable on the Court’s own initiative and does not require a specific application in relation to the child.

Associates and associated final orders

The FVPA enables final intervention orders to be made against associates of the respondent and for the protection of associates of the protected person. “Associates” do not necessarily have to be family members.

The “associate” provisions were included in response to a finding by the Victorian Law Reform Commission that associates of victims of family violence are often subject to violent and threatening behaviour from the perpetrator, particularly after an intervention order has been made: see p.26 of the Explanatory Memorandum.

There is no power to make interim orders for the protection of an associate of the affected family member/protected person or against an associate of the respondent.

An associated final order is not affected if the original final order is varied, extended, revoked or otherwise ends: s.76(3)(c).

Associate of the affected family member or protected person

Under s.4 of the FVPA an “associate” of an affected family member is a person who provides the affected family member with assistance or support. Section 76(2) empowers a court to make an “associated final order” to protect an associate of a protected person in certain circumstances.

Associate of the respondent

Under s.4 of the FVPA an “associate” of a respondent is a person who is so closely connected with the respondent that the respondent can influence the actions of the person whether directly or indirectly. Section 76(1) empowers a court to make an “associated final order” against an associate of the respondent in certain circumstances.

Additional police powers

The CFVA retains, with a few amendments, the police holding powers inserted into the CFVA in 2006. In addition, it establishes a system of police-issued family violence safety notices for use in certain circumstances outside court hours. Neither of these additional powers is applicable if the police officer believes on reasonable grounds that the respondent is a child.

Holding powers

Under s.13 of the FVPA a police officer may exercise a holding power in relation to a person only if the officer-

Holding powers enable a police officer to direct a person, orally or in writing, to remain at or go to a particular place or to remain in the company of a particular person: s.14. If the person does not comply with such a direction the person may be detained and the police officer may use reasonable force to apprehend and detain the person. The person may be detained at a police station or other place but not in a police gaol unless the officer considers it necessary to do so for the protection of any person or property or to prevent the person from escaping from detention: ss.15 & 17.

If a person has been held or detained under ss.14 or 15, a police officer may search the person and any vehicle, package or thing in the person’s possession if the officer suspects, on reasonable grounds, that the person possesses any object that may cause injury or damage or may be used to escape: s.16.

The maximum period for which a person may be held or detained is 6 hours after the direction is given or such period of not more than 10 hours in total as is ordered by a court: s.18. Holding powers are frequently used but their only intersection with the court is an occasional application for extension of a direction or detention. Such extension may only be ordered in exceptional circumstances but only if the application is not for a family violence safety notice: s.19. After-hours applications for extension may be made by telephone or fax: s.20. Even though police holding powers cannot be exercised against child respondents, the Children’s Court does have jurisdiction to extend a direction or detention under police holding powers in a case where an affected family member is a child. However, in practice, applications for extension are inevitably made to the Magistrates’ Court.

Family Violence Safety Notices

Under ss.24-25 of the FVPA a police officer who responds in person to an incident involving family violence may apply in person or by fax, telephone or other electronic communication to another police officer of or above the rank of sergeant before 9am or after 5pm on a weekday or on a Saturday, Sunday or public holiday if the police officer-

Under s.26(1) of the FVPA a police officer of or above the rank of sergeant may issue a family violence safety notice if the police officer believes on reasonable grounds-

The police officer to whom the application is made must hear the police officer responding to the incident, must be satisfied that the grounds on which the applicant formed an opinion about the matters in s.24 are reasonable and may, if practicable, hear the respondent or the affected family member: s.26(2).

Under s.29 the conditions of a family violence safety notice are limited to those in s.81(2)(a) to 81(2)(f) of the FVPA, namely:

A family violence safety notice must be returned to court at the first mention date stated in the notice: s.31(2). Although a safety notice cannot be issued against a child respondent [s.24(a)], it may protect a child who has been subjected to family violence [s.26(1)(b)]. However, s.34(c) requires a police officer to file an authorisation form or a safety notice form with the Magistrates’ Court. It thus appears the Children’s Court has no power to deal directly with a safety notice and cannot therefore deal with applications commenced by the issue of a safety notice unless the application has first been formally transferred from the Magistrates’ Court under s.148 of the FVPA.

The form of the safety notice is set out in s.27, the procedure upon issue is in s.28 and the information to be included in the notice is in s.32. Service of the notice and the obligation of the serving police officer to provide an explanation to the respondent are detailed in ss.33-35.

If a police officer serves on a respondent a family violence notice that includes an exclusion condition, the officer must consider the accommodation needs of the respondent and any dependent children of the respondent and take any reasonable steps to ensure they have access to temporary accommodation: s.36(1). Conversely, if a police officer serves a family violence notice on a respondent that does not include an exclusion condition, the officer must consider the accommodation needs of the protected person and any dependent children of the protected person and take any reasonable steps to ensure they have access to temporary accommodation: s.36(2). These provisions do not require the police to provide free accommodation: s.36(3).

Section 39(2) provides that to the extent of any inconsistency between a family violence safety notice and an existing family violence intervention order, the latter prevails.

Under s.30 a family violence safety notice-

The Court’s existing arrangements for issuing warrant and interim intervention orders after-hours are retained in ss.44, 50 & 58 of the FVPA because it is recognised that police safety notices will not be appropriate in all cases.

The FVPA contains requirements in s.40 for the Chief Magistrate of the Magistrates’ Court and Victoria Police to provide reports (including statistics) on the operation of family violence safety notices for the period until 07/12/2009. The use of the notices will be evaluated by the Attorney-General to determine whether or not they provide an effective form of protection outside court hours.

Section 41 is a sunset provision limiting the life of the safety notice Division of the FVPA to 2 years.

General powers to enter, search & seize – Powers to seize firearm/weapon

Section 157 of the FVPA empowers a police officer, without warrant, to enter and search any premises where the officer on reasonable grounds believes a person to be if-

Section 160(2) of the FVPA empowers a magistrate, upon application by a police officer supported by evidence on oath, whether oral or by affidavit, to issue a search warrant authorizing the police officer named in the warrant and any assistants the police officer considers necessary-

The pre-conditions for the issue of a search warrant under s.160(2) are that the magistrate is satisfied there are reasonable grounds for suspecting that-

an offence against the FVPA is being or is about to be committed; or
the person is in possession of a firearm, firearms authority, ammunition or a weapon.

The matters which must be stated in a search warrant issued under s.160(2) are set out in s.160(3). A search warrant must be issued in accordance with the Magistrates’ Court Act 1989 (Vic) and in the prescribed form under that Act: s.160(4).

Section 158 of the FVPA empowers a police officer to direct a person to surrender a firearm, firearms authority, ammunition or weapon where-

Section 159 empowers a police officer, without warrant, to enter and search any premises at which a person resides or has resided or at which the person committed or allegedly committed family violence or a vehicle registered in the person’s name if-

Section 163 provides that if a person fails to comply with a direction under s.158(2) or a police officer searches premises under s.159(2), the police officer-

The effect of seizure of a firearm, firearms authority, ammunition or weapon is detailed-

in s.164 in the case where a final order has been made against the person; and
in s.165 in other cases.

Application for family violence intervention order

Under ss.42 & 43 of the FVPA and Rule 11.01 an application for a family violence intervention order must be made at the proper venue of the Magistrates’ Court or Children’s Court and must-

“Proper venue” of the court is defined in s.3(1) of the Magistrates’ Court Act 1989 and in s.3(1) of the CYFA in slightly different terms, reflecting the fact that there is a Family Violence Court Division of the Magistrates’ Court {see ss.4H & 4I of the Magistrates’ Court Act 1989 (Vic) (as amended} but there is no separate Division of the Children’s Court. As amended by s.235 of the FVPA, “proper venue” in relation to a proceeding in the Children’s Court brought under the FVPA is defined in paragraph (d) of the definition in s.3(1) of the CYPA as follows:

Section 44 of the CYFA sets out circumstances in which a police officer may make an application for a family violence intervention order by electronic communication after hours or in remote areas.

Who may make application?

Under s.45 of the CFVA, an application for an intervention order may be made by:

The form of consent for an application made under paragraphs (c) & (d)(ii) is set out in Rule 4.05.

Section 76(4) of the FVPA provides that an application for an intervention order may also be made by-

Rule 4.03 lists matters which must be included in an application for an associated final order.

Joint applications

Section 47(1) of the CFVA permits an application for a family violence protection order for a child to be included in an application for the protection of the child’s parent if the applications arise out of the same or similar circumstances.

Section 47(2) permits joint applications to be heard separately or together as the court thinks fit.

In deciding if it is appropriate to hear joint applications separately or concurrently the Court will normally accord the convenience of the parties significant weight. However, severance is likely if the Court considers that there is a potential conflict of interest between an adult and a child or if there are specific concerns – including protective concerns - which justify a transfer to the Children's Court of an application in respect of a child.

Application for leave to apply for order

Section 46 provides that if an application for leave is made under s.45(d)(ii) or s.45(e)(ii), the court must grant leave if it is satisfied that it is in the best interests of the affected family member to do so. If an application for leave is made by a child under s.45(d)(iii), the court must not grant leave unless it is satisfied the child understands the nature and consequences of a family violence intervention order.

Summons or warrant

Under s.49 of the CFVA, if an application for a family violence intervention order has been made to the court, the appropriate registrar may issue a summons requiring the respondent to attend court for the hearing of the application.

There is no power to issue a warrant to arrest a child respondent. Under s.50(1) a magistrate or an appropriate registrar may issue a warrant for the arrest of an adult respondent, as if the application alleged the commission of an offence, if the magistrate or registrar believes on reasonable grounds it is necessary-

If the applicant seeks a warrant to issue in the first instance, the application for the warrant must be in writing and made on oath or affidavit or be certified and must be in the same document as the application for the family violence intervention order: s.51.

The Bail Act 1977 (Vic) applies to and in respect of a respondent to an application for a family violence intervention order arrested under a warrant as if the respondent were an accused person charged with an offence to whom s.4 of the Bail Act applies: s.52(1). The registrar or police officer must advise the affected family member of the outcome of the application for bail: s.52(2).

Family Violence Safety Notice deemed to be application & summons

Section 31 of the FVPA provides that a family violence safety notice is taken to be-

A family violence safety notice must be returned to the Magistrates’ Court at the first mention date stated in the notice. This must be within 72 hours after service or if that is not possible because of a public holiday, the first working day after the public holiday.

After-hours application for interim intervention order or warrant

Section 44 of the FVPA enables a police officer to apply for an intervention order by telephone, fax or other electronic communication if the police officer is seeking an interim order until the final order may be determined and either-

the application is made before 9am or after 5pm on a weekday or on a Saturday, Sunday or public holiday; or
the distance from the nearest venue of the court where the court is sitting is so great that it is impracticable to make the application in person.

Before applying by electronic communication, s.44(3) requires the police officer to complete an application, on oath or by affidavit or certified, that sets out-

A protocol between the Magistrates' Court, the Children’s Court and Victoria Police enables a police officer who wishes to make an after-hours application for an intervention order:

to apply to the after-hours duty registrar pursuant to s.50(1) of the FVPA for a warrant to arrest the respondent as if the application alleged the commission of an offence; or
to apply to an after-hours magistrate via the duty registrar for an interim intervention order pursuant to ss.44, 53 & 58 of the FVPA.

If a warrant is issued, it is often endorsed with conditions of bail which replicate the prohibitions or restrictions sought by the applicant.

Service of documents and orders

See also Order 5 of the relevant Rules.

Manner of service

Under s.202 of the FVPA any document required to be served on a person under the FVPA must be served by giving a true copy of the document to the person personally. However, if it appears to the court that personal service of any document (other than a family violence safety notice) is not reasonably practicable, the court may-

Provisions relating to proof of service, certificate of service and inability to effect service are in ss.203, 206 & 204 of the FVPA.

Where the court is required to effect personal service of a document or order on a person, the court normally uses Victoria Police as its agent if the person to be served is not present at court. Section 205 authorises service by an agent.

If a document is being served out of Victoria under Division 1 of Part 2 of the Service and Execution of Process Act 1992 (Cth), the notice that is to be attached to the document under s.16 of that Act must include the particulars detailed in Rule 14.02.

Service of application for intervention order

Section 48 of the FVPA requires the appropriate registrar for the court, as soon as practicable after an application for a family violence intervention order is made, to serve the application on-

Under the CFVA the court was expressly prohibited from making a final intervention order unless a summons had been served on the respondent or the respondent had been bailed to appear at the hearing of the complaint: s.12(a). A similar consequence – albeit arrived at by a different path – derives from s.61of the FVPA which permits a court to hear an application for a final order on a mention date if satisfied the respondent has been served with a copy of the application for a family violence intervention order and has not attended court on the mention date.

Service of application to vary, revoke or extend intervention order

Section 113 of the FVPA requires the appropriate registrar for the court to serve an application to vary, revoke or extend a family on the following persons, other than the applicant-

Preparation, filing and service of final or interim intervention orders

Under s.11 of the FVPA “family violence intervention order” means-

If the court makes, varies, extends or revokes a family violence intervention order, s.201 of the FVPA requires the appropriate registrar for the court to-

Procedure

Filing - Content and form of documents – Refusal to accept documents

Under Rule 1.10 a document is filed by being lodged with the registrar in the office of the Court at the proper venue of the Court.

Under Rule 3.02(1), the court may require any document in a proceeding to be prepared in any manner it thinks fit. If a document for use in the court is not prepared in accordance with the Rules or any order of the court, Rule 3.02(2) permits-

a registrar to refuse to accept it for filing without the direction of the court; or
the court to order that the party responsible is not entitled to rely on it in the proceeding until a document which is properly prepared is filed.

Under Rule 3.03(1), a registrar may also refuse to accept a document for filing if the form or contents of the document show that the document, if accepted, would constitute an abuse of the process of the court. Rule 3.03(2) empowers the court to direct the registrar to accept a document for filing.

If a document for use in the court contains scandalous, irrelevant or otherwise oppressive matter, Rule 3.04 empowers the court to order that the offending matter be deleted or the document be taken off the file. Order 6 empowers the court to stay, strike out or amend a proceeding which is scandalous, frivolous or vexatious or is otherwise an abuse of process of the court.

Rule 14.03 gives the court a general power to amend any document for the purpose of determining the real question in issue between the parties, of correcting any defect or error in the proceeding or of avoiding multiplicity of proceedings.

Request for further and better particulars of application

Rule 4.06(1) provides that a party may only seek further and better particulars of an application with leave of the Court. Rule 4.06(2) empowers the Court to fix a time for the provision of the particulars and give any appropriate directions for seeking and providing particulars.

Withdrawal of application requires leave of the court

Rule 4.07 permits an application under the FVPA to be withdrawn only with the leave of the Court. A party seeking to withdraw an application must-

file a written notice of withdrawal, to be served on the respondent by the registrar; or
attend court and make an oral application to the Court.

Hearings – Directions - Mention date - Adjournment to seek legal advice

Rule 9.01 empowers the court to give directions as to the order of evidence and generally as to the conduct of the hearing of a proceeding. Rule 9.02 prohibits opening and closing addresses unless the court otherwise orders. Rule 14.04 gives the court a general power at any stage of a proceeding to give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination.

Rule 9.03 provides that if any party is absent when the hearing of a proceeding is called on, the court may-

Section 61(1) of the FVPA prohibits the court from hearing a contested application for a final order on the mention date unless-

Section 61(2) makes it clear that a court is not prevented from making a final order on the mention date if-

Section 151(1) empowers a court hearing a proceeding under the FVPA – on its own initiative or on application by a party – to adjourn the hearing to give a party a reasonable opportunity to obtain legal advice.

“Best interests” principles in ss.8-14 of the CYPA are not mandatory

Section 172 of the FVPA declares that the Children’s Court is not required to have regard to the “best interests” principles set out in ss.8-14 of the CYFA in making any decision or taking any action in the course of exercising jurisdiction given to it under the FVPA. As the writer reads s.172, it does not oust application of the principles in ss.8-14 except insofar as they are inconsistent with express provisions in the FVPA. It does not say that “the Court must not have regard to” the best interests principles. It merely says that “the Court is not required to have regard to [those] principles”. While the writer understands why the best interests principles may usually not be able to applied in toto to child respondents, it is difficult to see why they should ever need be displaced so far as children who are protected persons are concerned.

Informal procedure – Balance of probabilities - Role of the rules of evidence

Under s.215(1) of the CYFA, the Family Division of the Children’s Court:

Section 65(1) of the FVPA is not as broad as s.215(1)(d) of the CYFA, although it is broader than its predecessor s.13A of the CFVA. Section 65(1) provides that, subject to the Act, in a proceeding for a family violence intervention order the court may inform itself in any way it thinks fit, despite any rules of evidence to the contrary. However, s.65(2) of the FVPA retains the following specific provisions in the Evidence Act 1958 (Vic):

Despite s.65(1) of the FVPA, Rule 14.01 provides that a risk assessment – a summary prepared by a registrar under the Common Risk Assessment and Risk Management Framework relating to an affected family member’s risk of family violence – is confidential and must not be-

In a footnote reference in Weinstein v Medical Practitioners Board of Victoria [2008] VSCA 193 at [28] Maxwell P (with whom Neave & Weinberg JJA agreed) noted that the power invested in the Family Division of the Children’s Court by s.215(1)(d) of the CYFA was subject to an obligation to accord procedural fairness to the parties. It is clear that an obligation to accord procedural fairness and to comply with the rules of natural justice is also implied in s.65(1) of the FVPA.

Section 65(3) of the FVPA allows the court to refuse to admit, or limit the use to be made of evidence if the court is satisfied-

Since s.65 of the FVPA is a later enactment than s.215(1) of the CYFA, it appears to the writer that s.65 takes precedence over s.215(1)(d) for proceedings in the Children’s Court in the event of any inconsistency between the two statutory provisions.

However, there do not appear to be any provisions of the FVPA which are actually or potentially inconsistent with ss.215(1)(a), 215(1)(b) & 215(1)(c) of the CYFA. In particular, the principle in s.215(1)(c) that evidence be considered on the balance of probabilities is enshrined in all of the substantive provisions in the FVPA relating to the making or extension of intervention orders: see, for example, ss.53(1)(a), 74(1), 76(1)(b), 77(2) & 106(2).

Evidence by affidavit

Section 66 of the FVPA empowers the court to admit evidence by affidavit or sworn statement despite any rules of evidence to the contrary or anything to the contrary in any Act. However, a party to the proceeding may, with the leave of the court, require a person giving evidence by affidavit or sworn statement to attend the hearing of the proceedings to be called as a witness and to be cross-examined.

Order 7 of the Rules regulates affidavits, including their form and content. Rule 7.06 requires documents referred to in an affidavit to be described as exhibits and not to be annexed to the affidavit. Rule 7.07 enables affidavits which are irregular in form to-

Evidence by children – Restriction on the presence of children

Section 67 of the FVPA prohibits a child, other than an applicant for a family violence intervention order, from giving evidence in a proceeding under the FVPA unless the court grants leave.

Section 150 of the FVPA prohibits a child, other than the respondent or defendant, from being present in court during a proceeding under the FVPA unless the court so orders if the child is-

In deciding whether or not to grant leave under s.67 or make an order under s.150, the court must have regard to-

Expert evidence about family violence

Section 73 of the FVPA empowers the court to admit evidence about the dynamics and characteristics of family violence from a witness with relevant qualifications, training or expertise in family violence.

Rule 8.01(1) requires a party who intends to adduce the evidence of an expert witness at a hearing to file – at least 5 working days before the date of the hearing - a statement in accordance with Rule 8.01(2) or a copy of the expert’s report in accordance with Rule 8.01(3). Under rule 8.01(4) a failure to comply results in the party being unable to adduce evidence from an expert witness at the hearing unless the Court grants leave, the other parties consent or the evidence is adduced in cross-examination.

Cross-examination of “protected witness” – Consequential legal representation

Under s.70 the following persons are “protected witnesses” for the purposes of the FVPA-

Section 70(3) prohibits a protected witness from being personally cross-examined by a respondent unless the protected witness is an adult who has given informed consent and the court is satisfied that it would not have a harmful impact on the protected witness to be cross-examined by the respondent. The court must inform an unrepresented respondent of this prohibition and must grant an adjournment if satisfied the respondent has not had a reasonable opportunity to obtain legal representation: s.70(4).

Section 71(1) provides that if the respondent does not obtain legal representation for the cross-examination of a protected witness after being given a reasonable opportunity to do so, the court must order Victoria Legal Aid to offer the respondent legal representation for that purpose.

Section 72 provides that if-

the respondent is legally represented; and
the protected witness is the applicant, is not a police officer and is not legally represented-

the court must order Victoria Legal Aid to provide legal representation for the protected witness for the purposes of cross-examination by the respondent’s legal representative unless the protected witness objects.

Victoria Legal Aid may apply conditions under s.27 of the Legal Aid Act 1978 (Vic) to the representation of the respondent or the protected witness.

If the respondent refuses the legal representation offered under s.71(1) or otherwise refuses to co-operate, the court must warn the respondent that if the respondent is not represented and not permitted to cross-examine the protected person about events relevant to the application, neither the respondent nor the respondent’s witnesses may give evidence about those events: s.71(4).

It is unlikely that ss.71-72 will often be applicable to child respondents and child applicants in the Children’s Court because they will usually be legally represented for the whole proceeding.

The FVPA does not expressly state whether the legal representative provided by Victoria Legal Aid to a protected witness who is a child must represent the witness on the “instructions” model or the “best interests” model: cf. ss. 524(10) & 524(11) of the CYFA. The writer believes that a legal representative appointed under either s.71 or s.72 to represent a child (who will presumably be mature enough to give instructions) will have to act on those instructions insofar as they are compatible with law.

Alternative arrangements for a proceeding

Section 69 of the FVPA empowers the court to direct that the following alternative arrangements made be made for a proceeding in respect of a family violence intervention order-

closed circuit television or other facilities that enable communication between the courtroom and another place or using screens to remove the respondent from a party’s or witness’ direct line of vision [see also Rule 9.04];
permitting a person to be beside a party or witness to provide emotional support;
requiring legal practitioners to be seated during the proceeding;
any other alternative arrangements the court considers appropriate.

If a witness is an adult, the court may make such a direction on its own initiative or on the application of a party to the proceeding. If a witness is a child, the court must make such a direction unless it considers it is not appropriate to do so.

Court may be closed to the public

Section 68(1) of the FVPA allows both the Magistrates’ Court and the Children’s Court to-

if necessary to prevent an affected family member or protected person or witness from being caused undue distress or embarrassment.

Section 523(2) of the CYFA confers a broader power of closure on the Children’s Court.

Restriction on publication of proceedings

Stringent restrictions on publication (except with the permission of the President) of-

a report of any proceeding in the Children's Court which contains any particulars likely to lead to the identification of a child, party, witness or venue; and
a picture of a child, party or witness; and
any matter containing particulars likely to lead to the identification of a child as being the subject of an order made by the Court-

are set out in s.534 of the CYFA. Breach of such restrictions is an offence punishable by fine or imprisonment.

Sections 166-169 of the FVPA contain broadly similar restrictions on the publication of identifying particulars or pictures in proceedings in the Magistrates’ Court under the FVPA. However, under s.169 the court – not just the Chief Magistrate - may make an order allowing publication of restricted material if but only if-

the court reasonably considers it is in the public interest or is just to allow the publication of the particulars or picture; or
a picture is not of and does not include a child and will not be likely to lead to the identification of a child.

Interim family violence intervention order

In Hickman v Smith & Anor [2003] VSC 126 {MC14/03}, Ashley J sounded a warning about interim intervention orders under the CFVA. The warning is equally applicable to orders under the FVPA:

"Something should be said…about the jurisdiction to grant an interim intervention order. Whether such an order is made in the presence or absence of the respondent, it is an order which has far-reaching consequences. Of course, the safety of the complainant is a crucial consideration. But it must be remembered that if such an order is made the consequences for a respondent are serious indeed. His or her conduct is inhibited; and any failure to abide the order constitutes an offence which may lead to the imposition of substantial penalties. Moreover, the order is made having heard one side of things only."

Power to make interim order

Sections 53-54 of the FVPA give a court power to make an interim intervention order - whether or not a copy of the application has been served on the respondent and whether or not the respondent is present – if-

In deciding whether or not to make an interim order the court must not take into account whether or not the respondent has been given a direction or detained in an exercise of police holding powers.

The threshold test for making an interim intervention order in s.53(1)(a) is expressed in different terms from the test for making a final intervention order in s.74. However, in practical terms, the requirement to ensure the safety of the affected member will generally lead to the same outcome as the pre-conditions for the making of a final order, namely that (1) the respondent has committed family violence against the affected family member and (2) is likely to do so again.

An interim order may apply to more than one affected family member if the pre-conditions in s.53 are met for each: s.56.

Interim order made on electronic communication

If the court makes an interim order under s.53 on an application under s.44 made by telephone, fax or other electronic communication, s.58 requires the court to inform the applicant police officer of-

Procedural pre-requisite

Section 55(1) of the FVPA provides that unless the order is by consent or uncontested, the court must not make an interim intervention order unless the application-

However, s.55(2) makes it clear that the affected family member is not obliged to give evidence before an interim intervention order can be made.

Duration of interim order

If the court makes an interim order, it must ensure the application is listed for a decision about a final order as soon as possible: s.59.

Under s.60, an interim order ends when a final order is made unless the interim order contains a condition that the interim order continues until the final order is served on the respondent. An interim order also ends if the court revokes it, if the court refuses to make a final order or if the application is withdrawn.

No power to make associated interim order

A court has no power to make interim orders for the protection of an associate of the affected family member/protected person or against an associate of the respondent.

Final family violence intervention order

Power to make final order for applicant family member

Section 74(1) of the FVPA gives a court power to make a final intervention order if the court is satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to do so again.

For an analysis of the word "likely" in s.4(1) of the predecessor CFVA, see the judgment of Bongiorno J in Kirby v Phelan [2003] VSC 43 {MC02/03} at [12]-[15].

A final order may be made for more than one affected family member if the pre-conditions in s.74(1) & 74(2)(b) are met for each.

Power to make associated final orders

Section 76(1) of the FVPA empowers the court to make a final order against an additional respondent if-

Section 76(2) empowers the court to make a final order to protect an additional applicant if-

Section 76(3)(a) declares that an application for an associated final order may be heard with the application for the original final order.

Section 76(3)(c) declares that an associated final order is not affected if the original final order is varied, extended, revoked or otherwise ends.

Protection of children on court’s own initiative

Section 77(1) of the FVPA requires the court, before making a final order under s.74 or s.76, to consider whether there are any children who are family members of the affected family member or the respondent who have been subjected to family violence committed by the respondent. Section 77(2) empowers the court, on its own initiative, to make one of two types of orders to protect such children. If the court is satisfied, on the balance of probabilities, that a child who is a family member of the affected family member or the respondent has been subjected to family violence committed by the respondent and is likely again to be subjected to family violence committed by the respondent, the court may-

Duration of final order

Section 97 of the FVPA empowers the court to specify in a final order the period for which the order is in force. If the respondent is a child, s.98 restricts that period to not more than 12 months unless there are exceptional circumstances.

In making a decision about the duration of a final order, the court must take into account-

Under s.99 of the CFVA, a final intervention order remains in force-

Conditions in intervention orders

Subject to s.75 [discussed below], s.81(1) of the FVPA empowers a court to include in a family violence intervention order any conditions that appear to the court necessary or desirable in the circumstances. In deciding appropriate conditions, s.80 requires the court to give paramount consideration to the safety of the affected family member and any children who have been subjected to the family violence to which the application relates.

A non-exhaustive list of conditions

In what is expressed to be a non-exhaustive list, s.81(2) provides that a final or an interim order may include conditions-

Restriction on conditions in absence of affected family member’s consent

If the applicant for a final order is a police officer and the affected family member has not consented to the making of the application, s.75 restricts the final order to the conditions referred to in s.81(2)(a), (f), (g) or (h) unless the affected family member-

is a child; or
has a guardian who has consented to the application; or
is cognitively impaired.

Condition prohibiting respondent from committing family violence

The focus of the FVPA is the protection of a person against family violence committed by another. Section 81(2)(a) thus sets out the central condition on most orders. A question arises whether a blanket condition prohibiting a respondent from committing “family violence” against a protected person can be made in a case where only one form of family violence (e.g. economic abuse) has been engaged in by the respondent and where only that same form is likely in the future. Given the preamble and purpose provisions of the FVPA and the wording of the Act generally, it is the writer’s view that where any form of family violence has been engaged in and is likely in the future, the court may impose a blanket condition prohibiting a respondent from committing “family violence” generally against the protected person.

Exclusion of respondent from residence

If the court decides to make a final or an interim order, s.82 of the FVPA requires the court-

to consider whether to include a condition excluding the respondent from the protected person’s residence regardless of any legal or equitable rights the parties have in the residence;
in deciding whether to include an exclusion condition, to have regard to all the circumstances of the case, including-

If the court decide that an exclusion condition is appropriate in a family violence intervention order against an adult respondent and the protected person does not oppose the inclusion of the condition, s.82(4) of the FVPA requires that the order include the exclusion condition. However, this sub-section is not easy to reconcile with s.75(2) [discussed above] which prohibits an exclusion condition in most cases where the applicant is a police officer and the protected person has not consented to the making of the application. There is a large difference between a person not opposing something and a person not consenting to something. It is the writer’s view that s.75(2) should prevail over s.82(4) to the extent of any inconsistency between them.

Division 1 of Part 6 of the Residential Tenancies Act 1997 (Vic) enables a protected person to apply for an existing tenancy agreement to be terminated and a new tenancy agreement to be entered into with the landlord if a final family violence intervention order includes an exclusion condition.

Exclusion of child respondent from residence

If the court decides to make a family violence intervention order against a child respondent, s.83(2) of the FVPA requires the court, in deciding whether to include an exclusion condition, to have regard to the following matters additional to those in s.82(2)-

Section 83(4) requires the court to prioritise the child living with extended family or relatives and have regard to the need to keep the child’s culture and identity through contact with the child’s community.

Despite s.80 expressing that the safety of the protected persons is of “paramount consideration”, s.83(3) enables the court to include an exclusion condition in an order against a child respondent only if it is satisfied that the child will have appropriate alternative accommodation and appropriate care and supervision.

Section 84(1) of the FVPA empowers the court to ask the Secretary to DOHS to give the court a report about the options available for the appropriate accommodation, care and supervision of a child respondent if an exclusion condition were included in a family violence intervention order. Section 84(2)(a) requires the Secretary to give the report to the court in the period ordered by the court or, if no period is ordered, within the prescribed time. Section 84(2)(b) provides that for a request relating to a child under the age of 17 years, s.30 of the CYFA applies as if the request were a report received under s.28 of the CYFA.

If the court includes an exclusion condition in a family violence intervention order against a child respondent, s.83(5) requires the court to notify the Secretary to DOHS that the order has been made.

New address for service for excluded person

Section 85 requires the court to-

ask the respondent to provide an address for service of documents (which may be an email address); and
advise the respondent that if a police officer is unable to locate the respondent to serve the respondent with a document under the FVPA, the police officer may, under s.207, seek information about the respondent from public sector organizations.

The respondent is not obliged to comply with the request to provide an alternative address. If the respondent provides an alternative address other than where the respondent lives or works and another person living at that address advises the court that he or she does not consent to the use of that address for service, the address is not a valid address for service.

Conditions about personal property

Section 86 of the FVPA empowers the court to include in a final or interim order a condition directing the respondent-

to return the protected person’s personal property or property belonging to a family member of the protected person; or
to return personal property belonging to the protected person and the respondent that will enable the protected person’s everyday life to continue with as little disruption as practicable in the circumstances.

If the order includes an exclusion condition, the court may also include in a final or interim order a condition that-

requires the furniture or appliances in the residence that enable the normal running of the home to remain in the residence; and
allows the respondent to return to the residence, in the company of a police officer or another specified person, to obtain any of the respondent’s personal property that is not required under the order to remain in the residence or to return property in accordance with s.86(a).

Section 87 of the FVPA provides that any condition in an intervention order is subject to any order to the contrary made by the Family Court or another court or a Tribunal with relevant jurisdiction to adjudicate in property disputes. To the extent of any inconsistency, the order of the other court prevails. Section 88 of the FVPA makes it clear that the inclusion of a condition about personal property in an intervention order does not affect any rights the protected person or the respondent may have in relation to ownership of the property.

Decision about contact with child – Inconsistency with other court order

If the court decides to make a family violence intervention order and the protected person or the respondent is the parent of a child, s.91(1) of the FVPA requires the court to decide whether or not it will jeopardise the safety of the protected person or child for the child to live with, spend time with or communicate with the respondent. A previous lack of violence by the respondent towards the child is not on its own sufficient reason to decide the child’s safety will not be jeopardised: s.91(2).

If the court decides the safety of the protected person or child may be jeopardised, s.93 requires it to include a condition in the intervention order prohibiting the respondent from living with, spending time with or communicating with the child.

If, on the contrary, the court decides the safety of the protected person or child will not be jeopardised by the respondent living with, spending time with or communicating with the respondent, s.92 requires the court to include in the intervention order the following conditions-

Section 89 of the FVPA requires the court to enquire whether there is a current-

Family Law Act order; or
child protection order-

if it decides to make a family violence intervention order in any case in which the protected person or the respondent is the parent of a child.

If the family violence intervention order and any Family Law Act order will be inconsistent, s.90 of the FVPA requires the Court, to the extent of its powers under s.68R of the Family Law Act, to revive, vary, discharge or suspend the Family Law Act order to the extent of the inconsistency.

There is no power under s.90 to vary, discharge or suspend a child protection order. Under s.173(1) of the FVPA a family violence intervention order prevails over an inconsistent child protection order to the extent of the inconsistency.

Suspension or cancellation of firearms authority or weapons approval

Section 95 of the FVPA empowers the court to include a condition-

in an interim order, suspending-
in a final order, revoking-

the respondent’s firearms authority, weapons approval or weapons exemption.

Courtlink conditions

The Courtlink computer systems of the Magistrates' & Children's Courts contain a number of pro-forma prohibitions or restrictions which are based on s.81(2) of the FVPA. These do not, of course, restrict the power of the court to include any conditions that appear to the court necessary or desirable in the circumstances of any particular case.

The pro-forma conditions on the Courtlink system for orders under the FVPA are as follows:

Code	Directions clause	Default wording for Conditions
1. ASH	The respondent must not	commit family violence against the protected person(s). Note: The Family Violence Protection Act 2008 defines family violence as behaviour by a person towards a family member of that person that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive, or in any other way controls or dominates a family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person. It also includes behaviour that causes a child to hear or witness or otherwise be exposed to the effects of these behaviours.
2. DAM	The respondent must not	intentionally damage any property of the protected person(s) property or threaten to do so.
3. SUR	"	follow the protected person(s) or keep him/her/them under surveillance.
4. COM	"	publish on the internet, by email or other electronic communication any material about the protected person(s).
5. ATC1	"	contact or communicate with a protected person by any means.
6. BPR1	"	approach or remain within (default to 5) metres of a protected person.
7. EXC1	"	go to or remain within (default to *200* metres) of ………………….(the protected person’s address) or any other place where a protected person lives, works or attends school.
8. ENG	"	get another person to do anything he/she must not do under this order.
9. 93	"	(a) live in the same place as; or (b) spend time with or have contact with; or (c) communicate with- any child protected by this order.
10. PPR1	The Court also ordered:	The respondent must arrange to return personal property belonging to the protected person(s) within (default to 2) days of the service of this order.
11. PPR2	"	The respondent must arrange to return jointly-owned property within (default to 2) days of the service of this order.
12. FIR1	"	FOR INTERIM ORDER ONLY Until further order, any firearms authority held by the respondent is suspended. The respondent must hand any firearms in his/her possession to police immediately.
13. WEA1	"	FOR INTERIM ORDER ONLY Until further order, any weapons approval or exemption held by the respondent is suspended. The respondent must hand any weapons in his/her possession to police immediately.
14. FIR2	"	FOR FINAL ORDER ONLY Any firearms authority held by the respondent is cancelled. The respondent must hand any firearms in his/her possession to police immediately.
15. WEA2	"	FOR FINAL ORDER ONLY Any weapons approval or weapons exemption held by the respondent is revoked. The respondent must hand any weapons in his/her possession to police immediately.
16. 68R1		FOR INTERIM ORDER ONLY At the time of making this interim intervention order, the Court has also made an order under section 68R of the Family Law Act 1975. The Court has ordered that the parenting order made on --/--/--is: ………………………….………………………………………………… ……………………………………………………………………………. This order will end when the interim intervention order ends or 21 days from the date when the interim intervention order was made (whichever is the earlier). Note: Victorian police cannot enforce the contravention of a Family Law Act order.
17. 68R2		FOR FINAL ORDER ONLY At the time of making this final intervention order, the Court has also made an order under section 68R of the Family Law Act 1975. The Court has ordered that the parenting order made on --/--/-- is: …………………………………….………………………………………. ……………………………………………………….……………………. Note: Victorian police cannot enforce the contravention of a Family Law Act order.
18. 92		If the respondent does not commit family violence while doing so, he/she will not contravene this order by: (a) doing anything that is permitted by a Family Law Act order, a child protection order or a written agreement about child arrangements; (b) negotiating changes to child arrangements by letter, email or text message; (c) communicating with a protected person through a lawyer or mediator; (d) arranging and/or participating in counselling or mediation; (e) going to the home of a protected person, in the company of a police officer, to collect personal property.
19. EXC2	The Court ordered that the respondent must not:	(a) assault, threaten or intimidate the protected person(s); or (b) intentionally damage any property of the protected person(s) or threaten to do so; or (c) contact or communicate with a protected person; or (d) approach a protected person; or (e) go to or remain within (default to *200* metres) (the protected person’s address) or any other place where a protected person lives, works or attends school.
20. EXC3	The Court ordered that the respondent must not:	(a) assault, threaten or intimidate the protected person(s); or (b) intentionally damage any property of the protected person(s) or threaten to do so.
21.		The respondent agrees to contact the Men’s Referral Service (9248 2899 or 1800 065 972) to obtain confidential advice and information about services that may assist him.

Counselling orders

Part 5 [ss.126-144] of the FVPA deal with counselling orders. Section 128 provides that Part 5 only applies to a respondent for whom the Family Violence Court Division of the Magistrates’ Court (established under s.4H(1) of the Magistrates’ Court Act 1989) makes a final order if the respondent-

is an adult; and
at the time of the family violence was resident in one of a limited number of postcode areas specified by notice published in the Government Gazette (currently those areas serviced by the Ballarat & Heidelberg Magistrates’ Courts).

Counselling orders are therefore not available in the Children’s Court.

Section 127 lists the two objects of Part 5:

Section 129 empowers the Family Violence Court Division to make an order to assess the eligibility of the respondent for counselling. Section 130 empowers it to make an order that the respondent attend counselling. The subject matter of the other sections in Part 5 is as follows:

Consent orders/Uncontested orders

Until 16/06/2003 s.14 of the CFVA had provided: "The court may make any order under [the CFVA] with the consent of all the parties to the proceeding." However, in Stephens v Melis and The Magistrates Court at Moe [2002] VSC 263, an issue arose as to whether a magistrate needed to be satisfied of the existence of relevant jurisdictional facts pursuant to s.4 of the CFVA before making an order by consent pursuant to s.14. Smith J held that s.14 - as it then stood - did not obviate the need for the court to find relevant jurisdictional facts: see especially at [38]-[41].

In order to overturn the effect of the decision in Stephens v Melis and The Magistrates Court at Moe, s.14 of the CFVA was amended to allow the court to make an intervention order by consent without embarking on a lengthy - or indeed any - enquiry as to the underlying jurisdictional facts and thus avoiding the potential practical difficulties of:

re-traumatising an aggrieved family member by regurgitating the evidence; and
avoiding unnecessary disruption of a mention court.

However, a subsequent amendment to s.14 with effect from 01/04/2005 empowered the making of an intervention order with the consent of the parties whereas the first amendment effective from 16/06/2003 had empowered the making of any order under the CFVA by consent. Neither amendment provided for making of orders if uncontested by the respondent and there is a world of difference between consenting to something and not contesting something.

Making interim order by consent or uncontested

Section 53(1)(b) of the FVPA empowers a court to make an interim family violence intervention order without being satisfied of the jurisdictional pre-requisites in s.53(1)(a) if the parties to the proceeding have consented to, or do not oppose, the making an interim order. Curiously, unlike s.78(2), this provision applies whether or not the respondent is a child.

Making final order by consent or uncontested

Section 78 of the FVPA is in part broader than s.14 of the CFVA and in part narrower. Provided that the respondent is not a child, s.78 allows a court to make a final order if the parties consent to or do not oppose the making of the order-

However, s.78 only applies to the making of a final order. The wording of ss.78 & 106(2) suggests that s.78 does not apply to the extension of orders. Further:

notwithstanding the fact that the parties consent to or do not oppose the making of a particular final order, the court may conduct a hearing in relation to the particulars of the application if it is in the interests of justice to do so [s.78(4)]; and
a court may refuse to make a final order to which the parties to the proceeding have consented if the court believes the order may pose a risk to the safety of one of the parties or a child of the protected person or respondent [s.78(5)]; and
s.78 does not oust the obligation of the court under s.77 to make orders providing for the protection of children on the court’s own initiative [s.78(6)].

Costs in family violence intervention order proceedings

Section 154(1) of the FVPA provides that each party to a proceeding for family violence intervention order under the FVPA must bear the party’s own costs of the proceeding.

Section 154(2) of the FVPA provides that for a proceeding for an order under Part 11 to declare a person to be a vexatious litigant-

Despite ss.154(1) & 154(2) the court is empowered by s.154(3)-

The mere fact that an application is made and then withdrawn is not exceptional and does not amount in itself to a vexatious or frivolous application or an application made in bad faith.

There is no direct caselaw on the operation of s.154 or its predecessor s.21C of the CFVA, there is precedent in the Family Court of Australia that a costs order made in family law proceedings-

in the absence of the other party and without notice to that party; or
without affording the parties an opportunity to be heard-

is bad as a denial of natural justice. See for example In the Marriage of Black 106 FLR 154 where Nicholson CJ, Ellis & Cohen JJ held that while in other jurisdictions where costs normally follow the event it may be permissible to make a costs order without according natural justice to the parties, in light of s.117 of the Family Law Act 1975 (Cth) it is not open to the Family Court to make orders for costs without giving the parties a chance to be heard, except perhaps in very unusual circumstances. See also In the Marriage of Knight [Family Court of Australia, unreported, 03/08/1989]. However, s.154(5) of the FVPA provides that if the court decides there are grounds to award costs against a person who is not present in court, the court may [not must]-

Explanation of family violence intervention order

If the court makes an interim order, the appropriate registrar is required by s.57 of the FVPA to give the respondent and the protected person a written explanation of the order, in the prescribed form, that explains the 8 matters set out in s.57(1)(a). The explanation must be-

given to the protected person or respondent if before the court and accompanied by a clear oral explanation of the matters contained in it; and
served on the protected person or respondent if not before the court and accompanied by any additional information the court considers necessary to explain the interim order.

If the court makes a final order and the respondent or protected person or both are before the court, the court is required by s.96 of the FVPA to give a clear oral explanation of the following five matters-

A failure to provide the required explanation does not invalidate the order: ss.57(3) & 96(4). However, the requisite explanation is a pre-condition to a contravention of the order if the order has not been served on the respondent: s.123(1).

There is no express requirement to provide these explanations upon a family violence order being varied or extended.

Relationship between FV intervention order and other court order

Intervention orders & bail conditions prevail over child protection orders

Section 173(1) of the FVPA provides that a family violence protection order applies despite any child protection order.

However, if the Children’s Court is hearing an application for a child protection order in relation to a child who is a protected person under an existing family violence intervention order, s.173(2) provides a welcome new power to revoke or vary, on the court’s own initiative, the intervention order to the extent it would be inconsistent with the order the court proposes to make under the CYFA.

In DOHS v Mr D & Ms W [Children’s Court of Victoria, unreported, 07/01/2009] the writer had heard a contested child protection case in which it had come to light – on the second day of the hearing – that there was a current intervention order against the father in relation to the mother and three children. That order, which had been made ex parte, was inconsistent in material respects with the supervision order that DOHS and the father were requesting the writer to make. Ultimately the writer applied s.173(2) and varied the intervention order, holding at pp.110:

“The operation of s.173(2) is not entirely clear. However, it seems to me that it does not operate as a quasi-appeal against an intervention order nor does it give the court an unfettered discretion to vary an intervention order. On the evidence I have heard in this case, I would

not

have made an intervention order against Mr D in relation to any of the three children. But that does not mean that I can vary the intervention order to exclude conditions even though I believe there is no proper evidentiary basis for them. I can only vary the intervention order to remove any inconsistencies between it and the supervision orders.”

In that case the father had also been the subject of a counselling assessment order and a counselling order. At p.111 the writer doubted that s.173(2) had any application to these orders:

“Given the definition of ‘counselling order’ in s.3 of the

FVPA

and the wording of ss.129(1) & 130(1) and given the definition of ‘family violence intervention order’ in s.11 of the

FVPA

, the counselling assessment order made on 13/03/2008 and the counselling attendance order made on 18/03/2008 are probably not part of the intervention order. If that is right they could not be varied by operation of s.173(2). But, in any event, there is no need to vary them. They are not inconsistent with any terms of the supervision orders and they are now spent.”

The only pre-condition to the exercise of the new power in s.173(2) is that the rules of natural justice apply. Section 173(3) provides that if the court proposes to revoke or vary an existing family violence intervention order until-

a court registrar has given notice of intention to revoke or vary to all the parties to the proceeding in which the order was made; and
all parties have had an opportunity to be heard.

In DOHS v Mr D & Ms W the only parties to the proceeding in which the intervention order was originally made were the mother and the father. Both were legally represented before the writer in the child protection case. Rather than send them out to a court registrar, the writer gave verbal notice to counsel of the fact that if the protection orders he ultimately considered to be in the best interests of any of the children proved to be inconsistent with the intervention order, then he intended to vary the intervention order. He also invited counsel to take the opportunity to be heard and – if they wished – to lead evidence on this in the course of the contest on the protection applications. The writer justified assuming the role of the registrar under s.173(3) as follows:

“Rather than send counsel upstairs to the Principal Registrar to be given notice pursuant to s.173(3)(a), notice which I would have had to have communicated to the Principal Registrar in any event, I considered that I had implied power to cut out the middleman and give that notice to counsel directly: see

Grassby v The Queen

(1989) 168 CLR 1,16 per Dawson J.”

Section 174 requires a registrar for the Court to give written notice to the Secretary to the Department of Human Services of the making of a family violence intervention order that is or may be inconsistent with a child protection order.

Section 175 of the FVPA provides that if a respondent to an application for a family violence intervention order is arrested under a warrant under s.50 and subsequently granted bail subject to conditions, the bail conditions prevail to the extent of any inconsistency with a child protection order.

Inconsistency between FV intervention order and Family Law Act order

In s.4(1) of the Family Law Act 1975 (Cth) [as amended] ('the FLA'), a 'family violence order' is defined as "an order (including an interim order) made under a prescribed law of a State or Territory to protect a person from family violence". Provided that the FVPA has been prescribed as a law for this purpose, a Victorian family violence intervention order is a 'family violence order' within the meaning of Division 11 of Part VII of the FLA.

For the purposes of this paragraph the writer uses the term ‘FLA contact order’ to cover the 3 types of orders, injunctions or arrangements set out in s.68P(1)(a) of the FLA, namely

FLA contact order prevails over existing inconsistent family violence order

If a court exercising jurisdiction under Part VII of the FLA makes an FLA contact order which is inconsistent with an existing family violence order, the court must explain or arrange for someone else to explain to the persons described in s.68P(2)(c) the issues set out in s.68P(2)(d). In addition the court must comply with the further obligations set out in s.68P(3).

Declaration in relation to inconsistency and effect thereof

Section 68Q(2) of the FLA provides that:

the applicant and respondent in the proceedings for an FLA contact order; and/or
the victim and respondent under the family violence order-

may apply to a court having jurisdiction under Part VII of the FLA for a declaration that an FLA contact order is inconsistent with a family violence order.

Whether the Children’s Court has such jurisdiction is a question which the writer considers to be moot and about which he would need to be persuaded by argument.

Suspension etc. of existing FLA contact order, plan etc. by family violence order

The state court's power to revive, vary, discharge or suspend an existing FLA contact order, undertaking, recognisance or parenting plan may be exercised on its own initiative or on application by any person [s.68R(2)] and is subject to the following limitations in s.68R(3):

Section 68R(4) imposes a further restriction: the court must not exercise the power of discharge in s.68R(1) in proceedings to make an interim family violence order or an interim variation of a family violence order.

In exercising its power under s.68R(1), a court with appropriate jurisdiction must-

In s.68N of the FLA, the purposes of Division 11 of Part VII of the FLA are:

The objects of Part VII of the FLA entitled “Children” are set out in s.60B(1) and are to ensure that the best interests of children are met by-

The principles underlying the above objects are set out in s.60B(2). They are that (except where it is or would be contrary to a child’s best interests)-

Under s.68T(1) if, proceedings to make an interim family violence order or an interim variation of a family violence order, the state court revives, varies or suspends an order, injunction or arrangement under s.68R, that revival, variation or suspension ceases to have effect at the earlier of:

No power to make an intervention order inconsistent with a FLA residence order

The writer's view is based on the absence from the legislation of any provisions akin to ss.68Q or 68R of the FLA or ss.173 or 176 of the FVPA. The specific powers in those sections relate to inconsistency between state intervention orders and FLA contact orders. Both Acts are silent about any inconsistencies between state intervention orders and FLA residence orders. In those circumstances, it is probable that the ordinary rules apply and that an order made under federal legislation takes precedence over an inconsistent order made under state legislation, whichever order is made first.

If the writer's view is correct, there is a clear potential for harm to children the subject of residence orders who flee into the care of another person as a result of violence by the person who has custodial rights and responsibilities. One way that such a child can be given immediate interim protection by the Children's Court is via the irreconcilable difference provisions of ss.259-260 of the CYFA. If an application for conciliation counselling is lodged with the Secretary by a child or his or her legal representative pursuant to s.260(1), the Children's Court has power under ss.262(1)(d) & 262(2)(a) to make an interim accommodation order placing the child in the care of a person other than the impugned carer. Such an order under the CYFA will take precedence over an inconsistent residence order under the FLA. And yet, paradoxically, an IAO is subservient to any state intervention order. The whole thing continues to make no sense at all.

Variation, revocation and extension

Sections 100-113 of the FVPA contain very substantial changes to the provisions governing variation, revocation and extension of family violence intervention orders which were previously contained in ss.16 & 16A of the CFVA.

Section 149(1) of the FVPA gives a court jurisdiction to revoke, vary or extend a FV intervention order or a counselling order made by it or any other court. However, under ss.149(2) & 149(3), the Magistrates’ Court or the Children’s Court may revoke, vary or extend a FV intervention order confirmed or varied by the County Court or Supreme Court on appeal only if there are new facts or circumstances relevant to the order. Notwithstanding the broad wording of s.149(1) and the wide definition of “court” in s.4 of the FVPA, the writer is of the view that the Children’s Court does not have jurisdiction to deal with an application to revoke, vary or extend a family violence intervention order unless-

at least one of the parties is a child at the time the application was made; or
the application is a “related application”.

Section 108(1) of the FVPA provides that an application to vary, revoke or extend a FV intervention order may be made to the court by-

Rule 4.04 lists matters which must be included in an application to vary, revoke or extend. The form of consent for an application made under paragraph (b) is set out in Rule 4.05.

Section 109 of the FVPA allows a respondent to apply for the variation or revocation of a FV intervention order only if the court has given leave for the respondent to make the application. The court may only grant such leave if there has been a change in circumstances which may justify a variation or revocation of the order.

Variation or revocation

Section 100(1) of the FVPA empowers a court to order the variation or revocation of a FV intervention order on-

See also Miles v Barca [2003] VSC 376 at [24].

In deciding whether to make an order to vary or revoke a FV intervention order, ss.100(2) & 102 require the court-

If the court decides not to grant an application for revocation of a FV intervention order, s.100(3) permits the court instead to order a variation of the order in the way it considers appropriate.

If a person makes an application for a variation of a FV intervention order, s.101(1) empowers the court to make an interim order varying the FV intervention order. An issue has arisen as to whether an application for an interim variation may be the subject of an after hours application by a police officer pursuant to s.44 of the FVPA. Section 101(2) – which is in Part 4 of the FVPA - provides that for the purposes of s.101(1), Division 2 applies (with any necessary changes to the making of an interim variation as if it were the making of an interim order under that Division. The substantive power to make an interim intervention order is in s.53 which is in Division 2. However, the after-hours procedure is set out in s.44 which is part of Division 1, entitled “Application for family violence intervention order”. On a literal reading of ss.44 & 101 it would seem that the procedure authorized by s.44 does not apply to s.101. However, such an outcome is in conflict with the clear purpose of the FVPA. Hence, the writer is of the view that an urgent legislative amendment is needed to clarify this issue.

Section 102(2) empowers the court-

to refuse to vary or revoke the FV intervention order; or
to vary it in a way that differs from the variation sought in the application-

if satisfied, on the balance of probabilities, that it is necessary to do so to ensure the safety of another person protected by the order.

Section 103 provides that if a child who is a protected person has a continuing need for protection from family violence committed by the respondent and that need is not substantially the same as that of the other protected person for whom the variation or revocation is being sought, the court may, on its own initiative-

Section 104 empowers the court on an application for variation or revocation, on its own initiative, to provide protection for children who have become family members since the original order was made.

Extension

Section 106 of the FVPA empowers a court to order the extension of a final order on-

If the court is satisfied, on the balance of probabilities, that if the order is not extended the respondent is again likely to commit family violence against the protected person.

Section 106(3) allows the court to extend a final order whether or not the respondent has-

committed family violence against the protected person while the final order was in force; or
complied with the order while it has been in force.

If a person applies for an extension of a FV intervention order and the respondent has not yet been served, s.107 empowers the court to make an interim order in the absence of the respondent extending the final order for a period of not more than 28 days at a time. A copy of the interim order must be served on the respondent with the application to extend the final order.

If applicant is not protected person

If the applicant for the variation or extension of a family violence intervention order is a police officer, s.110(1) allows the application to be made without the consent of the protected person. However, if the protected person has not consented to the making of the application, ss.110(2) & 110(3) provide that-

unless the protected person-

is a child; or
has a guardian who has consented to the application; or
is cognitively impaired.

If the applicant for the variation, revocation or extension of a family violence intervention order is not the protected person or guardian, the respondent or a police officer, s.111 provides that the application may only be made with the written consent of-

Section 112 of the FVPA requires the protected person’s views to be heard separately if the application for variation, revocation or extension is made by the person’s guardian or with the guardian’s consent and the protected person objects to the application.

Contravention

The FVPA uses the term “contravention” to describe what the CFVA called a “breach” of an intervention order. The rationale for the changed terminology is to emphasise that an intervention order is a civil order of the Magistrates’ Court or Children’s Court. However, whatever label is used, contravention or breach proceedings are criminal proceedings in which the Children’s Court can only be satisfied of an accused child’s guilt beyond reasonable doubt by relevant and admissible evidence: see s.357(1) of the CYPA.

In Miles v Barca [2003] VSC 376 Byrne J said at [26]: "The making of an intervention order is a serious matter carrying very serious consequences."

In imposing a sentence of 9 years of imprisonment for manslaughter of the accused’s partner who had had an intervention order against the accused, Hollingworth J said in DPP v Mahoney [2009] VSC 249 at [45]:

“Furthermore, the resort to violence in flagrant breach of intervention orders will be met by severe punishment. Intervention orders are a process designed by Parliament to provide the protection of the law to vulnerable individuals, usually women and children, who legitimately fear for their safety. Offenders who disregard such orders, and kill or cause serious injury, must anticipate that an extremely stern view will be adopted by the courts and, save in the most unusual circumstances, they will be subject to severe punishment.

”

Affirming a sentence of 2 years imprisonment on a charge of breaching an intervention order, one year of which was to be served cumulatively on a sentence of 3 years imprisonment on a related charge of intentionally causing injury, Vincent JA said in R v Duncan [2007] VSCA 137 at [37]:

“[T]he sentencing judge was clearly correct in attributing a high level of seriousness to the appellant's conduct and reflecting that in the sentences imposed. Not only did the appellant’s conduct involve a savage and sustained attack upon his unfortunate victim but it must not be forgotten she had sought the protection of the law against his continued and frightening criminal harassment. He responded to her endeavours, and to the imposition of a sentence of imprisonment upon him, by seeking to punish her and damage her property. Obviously the community cannot accept that those who avail themselves of its protection may be subject to revenge or retribution if its structures and that protection are to possess credibility and operate to deter potential offenders.”

Contravention of an intervention order is a summary offence which, for a child, is dealt with in the Criminal Division of the Children’s Court. Section 123 of the FVPA provides that a person against whom an interim or final family violence intervention order has been made and who-

must not contravene the order. The maximum penalty for contravention is level 7 imprisonment (2 years) or a level 7 fine (240 penalty units) or both. Under the CFVA the maximum penalty for a subsequent offence was 5 years imprisonment. To achieve consistency with s.113A of the Sentencing Act 1991 (Vic) the maximum is now 2 years for both a first and a subsequent offence. It follows that the reasoning of the Court of Appeal on this issue in R v Duncan [2007] VSCA 137 at [13]-[26] is no longer relevant.

Section 37 of the FVPA provides that if a person-

the person must not contravene the notice. The penalty provisions for such contravention are the same as those in s.123.

Section 123(3) provides that in a proceeding for an offence of contravening a FV intervention order, it is a defence to the charge for the accused to prove that-

Section 37(3) provides a reciprocal defence to a charge of contravening a FV safety notice.

Sections 38 & 124 of the FVPA empower a police officer to arrest without warrant a person whom he or she believes on reasonable grounds to have committed an offence against ss.37 & 123 respectively.

Section 125 provides that for the purposes of s.52 of the Magistrates’ Court Act 1989 (Vic), a protected person does not aid, abet, counsel or procure the commission of an offence against the FVPA, and is not punishable as a principal offender, because the protected person encourages, permits or authorises conduct by the respondent that contravenes a FV intervention order or FV safety notice.

Section 243 of the FVPA amends s.37C(2) of the Evidence Act 1958 to enable the court to direct that alternative arrangements be made for the giving of evidence if the proceeding relates (wholly or partly) to a charge for an offence where the conduct constituting the offence consists of family violence within the meaning of the FVPA. Alternative arrangements include those listed in s.37C(3) of the Evidence Act 1958.

Section 244 of the FVPA amends s.37CA(1) of the Evidence Act 1958 to enact special rules for the cross-examination of protected witnesses in legal proceedings that relate to charges for offences “where the conduct constituting the offence consists of family violence” within the meaning of the FVPA. Section 37CA(4) provides that a protected witness must not be personally cross-examined by the accused person. The definition of a “protected witness” in s.37CA is similar to that in s.70 of the FVPA.

Interstate and New Zealand Orders

Sections 177-179 & 184-186 of the FVPA provide for registration of corresponding interstate and New Zealand orders [defined in s.4].

Sections 179 & 186 allow a registered corresponding interstate and New Zealand order to be enforced in Victoria as if they were final orders under the FVPA.

Section 180 provides that when an order is registered in Victoria a subsequent variation, extension or revocation of a corresponding interstate order by a court of the State or Territory in which it was made has no effect in Victoria. On the contrary, s.187 provides that if a corresponding New Zealand order registered in Victoria is subsequently varied, revoked or extended by a court in New Zealand, the registration in Victoria is varied, revoked or extended accordingly.

Section 181 empowers a Victorian court to vary, extend or revoke a registered corresponding interstate order.

Rehearing

There was no express power in the CFVA to order a rehearing of a complaint for an intervention order where a party did not appear at the hearing of the complaint but a power could be inferred from the Magistrates’ Court rules. In Miles v Barca [2003] VSC 376 at [23], Byrne J affirmed the power of a Magistrate sitting in the Magistrates' Court to order a rehearing of a complaint where a party did not appear at the hearing:

"An application for an intervention order is a proceeding which is civil in character. It follows from this that, unless for some reason they are inconsistent with the Crimes (Family Violence) Act 1987 or the rules made under that Act, the statutory, regulatory and other practices of the Magistrates' Court in its civil jurisdiction will apply to these applications. I would accept that this equally applies to the jurisdiction to make such orders under the Crimes Act 1958 s.21A; these include s.110 of the Magistrates' Court Act 1989 and O.30 of the Magistrates' Court Civil Procedure Rules 1989 dealing with the power to order a rehearing where a party did not appear at the hearing of a complaint."

There being no equivalent general civil jurisdiction or rules in the Children’s Court, his Honour’s reasoning does not apply to that court but the writer considers that a judicial officer in the Children's Court did have limited power to set aside, ex debito justitiae, an order, at least in circumstances where there had been an abuse of process.

Section 122 of the FVPA invests a limited express power in both the Magistrates’ Court and the Children’s Court to rehear a proceeding which resulted in either a final order or an order declaring a person to be a vexatious litigant. Section 122(2) empowers the court to rehear such a matter if the court is satisfied, on the balance of probabilities, that-

An application under s.122 does not operate as a stay of the order [s.122(3)].

Rule 12.02 requires that an application for a rehearing be supported by an affidavit. Rule 12.01(2) requires a registrar of the court to list the application for hearing and serve a copy of the application and affidavit in support on the other parties to the proceeding.

If an applicant fails to appear at the time fixed for hearing of the application and the application is struck out, s.122(4) prohibits the applicant from reapplying except with the leave of the court.

Appeal

Subject to the exceptions in s.114(2) of the FVPA, s.114(1) allows a party to a proceeding under the FVPA to appeal against an order of the court in the proceeding or a refusal of the court to make an order (‘the relevant decision’). Section 115 requires the appeal to be made to the County Court or to the Trial Division of the Supreme Court if the order was made by the President of the Children’s Court. Order 13 relates to appeals.

Sections 116(1) & 116(2) provide that a person makes an appeal by filing notice of the appeal with the court that made the relevant decision within 30 days after the day the relevant decision was made. Sections 116(3) & 116(4) require the appropriate registrar to serve notice of the appeal on listed persons and file notice of appeal with the appellate court.

Under s.117, an appeal does not stay the operation of the relevant decision (other than the operation of a counselling order stayed under s.131). However, the court that made the relevant decision may, on the application of a party, stay the operation of the relevant decision or any part thereof pending the determination of the appeal. In staying the operation of the relevant decision or any part thereof, the court may impose bail conditions on the appellant as if the appellant were an accused person being released from custody on bail if the court considers it necessary-

If the application for the impugned order was made by a person other than the protected person or a police officer, s.118 provides that the appeal court must not start or continue the hearing of the appeal if-

Section 119(1) states that the appeal is by way of a rehearing.

On an appeal, s.119(2) empowers the appellate court to-

Section 120 provides that there is no appeal against the decision of the County Court or the Supreme Court on appeal. See also Peng Yuan Gao v Yan Zhang [2002] VSCA 19.

Sections 195-196 are additional provisions governing an appeal against an order declaring a person to be a vexatious litigant.

Vexatious litigant

New provisions relating to vexatious litigants under the FVPA are contained in ss.188-200. There are no provisions relating to vexatious litigants in the SIOA.

A court constituted by-

the Chief Magistrate or a Deputy Chief Magistrate of the Magistrates’ Court; or
the President of the Children’s Court-

Sections 189-194 & 198-199 govern the relevant procedure.

Regulations, Rules, Practice Directions & Forms

Regulations

Section 211 of the FVPA empowers the Governor in Council to make regulations for or with respect to any matter or thing required or permitted by the FVPA to be prescribed or necessary to be prescribed to give effect to the FVPA including-

forms;
matters relevant to applications; and
the content of orders, applications, notices and certificates.

The Family Violence Protection Regulations 2008 [S.R. No.153 of 2008] came into operation on 08/12/2008.

Rules & Practice Directions for the Children’s Court

Section 210(1) of the FVPA empowers the President of the Children’s Court, together with 2 or more magistrates of the court, to make rules for and with respect to proceedings in the court in relation to applications and orders made under the FVPA, including the non-exhaustive list of matters set out in s.210(2).

The Children’s Court (Family Violence Protection) Rules 2008 [S.R. No. 156 of 2008] revoke the Children’s Court (Family Violence) Rules 2000 and make a number of other rules.

Rule 2.01(1) provides that a failure to comply with the Rules is an irregularity and does not render a proceeding or a step taken, or any document or order therein a nullity. Rule 2.02 empowers the Court to dispense with compliance with the Rules, either before or after the occasion for compliance arises.

The power of the President of the Children’s Court to issue practice directions, statements or notes for the court under s.592 of the CYFA includes power to issue practice directions, statements or notes for the Children’s Court in relation to proceedings under the FVPA [s.210(4)]. No such practice directions, statements or notes have yet been issued.

Rules & Practice Directions for the Magistrates’ Court

Section 219 of the FVPA confers a similar rule-making power on the Chief Magistrate, together with 2 or more Deputy Chief Magistrates.

The Magistrates’ Court (Family Violence Protection) Rules 2008 [S.R. No. 157 of 2008] revoke the Magistrates’ Court Civil Procedure Rules 1999.

The power of the Chief Magistrate to issue practice directions, statements or notes for the court under s.16A of the Magistrates’ Court Act 1989 (Vic) in relation to civil proceedings includes power to issue practice directions, statements or notes for the Children’s Court in relation to proceedings under the FVPA [s.209(4)]. No such practice directions, statements or notes have yet been issued.

Forms

There are currently no prescribed forms either in the FVPA or in Regulations or Rules but informal forms have been created for use in the Magistrates’ Court and in the Children’s Court. A list of the relevant Children’s Court forms will be included in this paragraph shortly.

STALKING INTERVENTION ORDERS ACT 2008

Background to the SIOA

The Stalking Intervention Orders Act 2008 ('the SIOA') was introduced into the Victorian Parliament on 09/09/2008. It was passed on 12/11/2008 and assented to on 18/11/2008. Its commencement date was 08/12/2008. The SIOA is an interim measure which preserves - with minimal amendments - the regime for stalking intervention orders previously contained in the CFVA pending a comprehensive review of the legislation. In his Second Reading Speech on 11/09/2008 the Attorney-General said:

“As previously announced, the government intends to conduct a comprehensive review of the intervention order system for non-family members. The review will look at who should be able to obtain an intervention order against whom and in what circumstances. It will also examine the extent to which some matters currently subject to applications for a stalking intervention order could be resolved in conjunction with, or instead by, an alternative dispute resolution service.”

The SIOA repeats the definition of stalking in the Crimes Act 1958 and makes some other minor technical changes to the previous system of stalking intervention orders, reordering and rephrasing the CFVA in an effort to improve its clarity. It also brings the firearms, bail and the search and seizure provisions (apart from weapons) into line with the equivalent provisions of the FVPA. It is supported by a Statement of Compatibility under s.28 of the Charter of Human Rights and Responsibilities Act (Vic).

Final stalking intervention order

Section 7(1) of the SIOA gives a court power to make a final order in respect of a respondent if the court is satisfied on the balance of probabilities that the respondent has stalked another person (the affected person) and is likely to continue to do so or to do so again. In stalking cases there is no requirement that the respondent and the affected person be family members.

Section 7(4) provides that the court must not make a final stalking intervention order if satisfied on the balance of probabilities that the respondent engaged in the conduct without malice-

This is in similar terms to s.21A(4A) of the Crimes Act 1958 which provides a defence to a charge of stalking. It is odd that the restriction in s.7(4) of the SIOA is limited to a prohibition against making a final order for it is at least arguable that the court could make an interim order under s.13 even though the court is satisfied that the respondent fell within s.7(4). The writer considers that s.7(4) would have been better included in s.5.

A final order [including an order made under s.7 as varied or extended under s.25] may impose on the respondent any restrictions or prohibitions that appear to the court to be necessary or desirable in the circumstances [s.7(2)].

A final order may be made in respect of more than one affected person if the pre-conditions in s.7(1) are met for each [s.7(3)].

Under s.10(2) of the SIOA, a final stalking intervention order remains in force:

Meaning of “stalking”

In Miles v Barca [2003] VSC 376 Byrne J said at [26]: "A finding of stalking is a grave one, and a finding which carries with it considerable public opprobrium."

Statutory definition in ss.4 & 5 of the SIOA

"Stalking" is defined in s.4 of the SIOA in very broad terms.

Section 4(1) provides that a person (the respondent) stalks another person (the affected person) if the respondent engages in a course of conduct-

The intention referred to in s.4(1)(a) is not confined to actual intention for s.4(2) of the SIOA provides for legislatively deemed intention in the following circumstances:

“For the purposes of this Act, the [respondent] has the intention to cause physical or mental harm to the [affected person] or to arouse apprehension or fear in the [affected person] for his or her own safety or that of any other person if-

Prior to 10/12/2003 the definition of "stalking" ended with the words "and the course of conduct engaged in actually did have that result". That was altered by s.4(1) of Act No.105 of 2003 which introduced the equivalent of s.4(2) of the SIOA. Hence, it is no longer necessary to prove that the impugned course of conduct caused actual harm, fear or apprehension in the affected person except in the limited circumstances referred to in s.4(2)(b) of the SIOA.

Section 5 provides that the SIOA does not apply to conduct engaged in by a person performing official duties for the following purposes that, but for s.5, would constitute grounds for making an order under the SIOA-

Comparison with definition in s.21A of the Crimes Act 1958

Section 21A(1) of the Crimes Act 1958 creates the criminal offence of stalking for which the maximum penalty is 10 years’ imprisonment.

Sections 21A(2) & (3) define “stalking” for the purposes of the criminal law in effectively identical terms to s.4 of the SIOA. Section 21A(4) provides exemptions for persons performing official duties in effectively identical terms to s.5 of the SIOA. Section 21A(4A) provides a defence to a charge of stalking in effectively identical terms to the exemption in s.7(4) of the SIOA.

It follows that the case law on s.21A of the Crimes Act 1958 is centrally relevant to construction of the SIOA.

Extra-territorial operation of the legislation

In Director of Public Prosecutions (on behalf of Michael Jay Pena) v Brian Andrew Sutcliffe [Supreme Court of Victoria, unreported, case [2001] VSC 43, 01/03/2001] the primary question was whether s.21A of the Crimes Act 1958 had operation where the impugned course of conduct took place in Victoria but the harm suffered by the victim occurred in Canada. In the course of determining that s.21A does have extra-territorial operation, Gillard J. embarked on a detailed analysis of s.21A and the purposive construction thereof. An initial appeal against the decision of Gillard J was dismissed as premature and incompetent: Brian Andrew Sutcliffe v Director of Public Prosecutions (On behalf of Michael Jay Pena) [Court of Appeal, unreported, case [2003] VSCA 34, 07/04/2003]. By ss.21A(6) & 21A(7) of the Crimes Act 1958 [inserted by s.5 of the Crimes (Stalking) Act 2003 (Vic)] extra-territorial operation of s.21A was confirmed provided there remains a link with Victoria.

Sections 7(5) & 7(6) of the SIOA - in substantially identical terms to ss.21A(6) & 21A(7) of the Crimes Act 1958 - provide:

"(5) It is immaterial that some or all of the course of conduct constituting grounds for making an order under s.7(1) occurred outside Victoria, so long as the affected person was in Victoria at the time at which the conduct occurred.

(6) It is immaterial that the affected person was outside Victoria at the time at which some or all of the course of conduct constituting grounds for making an order under s.7(1) occurred, so long as that conduct occurred in Victoria."

It is odd that these extra-territorial provisions in the SIOA have been placed in s.7 for it appears they do not apply to any case in which an interim stalking intervention order is sought under s.13. The writer considers they would have been better included in s.4.

Relevant case law

The rather complex definition of stalking in s.4 of the SIOA and in s.21A of the Crimes Act 1958 raises a number of questions which remain unanswered in the legislation and about which there is limited case law. In R v Anders [2009] VSCA 7 Redlich JA, with whom Vincent & Kellam JJA agreed, said at [26]:

“Both parties on appeal made similar submissions as to the essential elements of the offence of stalking. The offence involves a pattern of conduct evidencing a continuity of purpose in relation to the victim and committed with the proscribed intent:

Berlyn v Brouskos

(2002) 134 A Crim R 111 [24] (Nettle J). The offender must have the intent to perform the acts associated with and directed towards the victim and which comprise a course of conduct which includes the conduct particularised in s.21A(2) – in this case particular (f) – ‘keeping the victim under surveillance’. The offender must also have the subjective intent particularised in s.21(3)(a) or the circumstances must satisfy the objective test set out in s.21A(3)(b). The ‘course of conduct’ must be directed towards a particular victim with that continuing intent:

R v Maccia

[2003] VSC 384, [18] (Gillard J).”

“Harm”, “Apprehension”, “Fear”

There is no definition and limited authority on the meaning of the terms 'harm', 'apprehension' and 'fear' in ss.4(1) & 4(2) of the SIOA. In upholding a no case submission on 8 of 48 charges of stalking based on covert “upskirting” in Kokoszka v Crawford [Magistrates' Court of Victoria-Power M, unreported, case P00675109, 28/06/2002], the writer held (at pp.25-26):

“The key word is 'harm'. That word is not defined in the Act. It has a number of meanings in common parlance. In the extract from the Oxford English Dictionary tendered by the prosecutor, its meaning as a noun is-

1.‘Evil (physical or otherwise) as done to or suffered by some person or thing; hurt, injury, damage, mischief.

2. Grief, sorrow, pain, trouble, distress, affliction.’

The Microsoft Word 2000 Thesaurus lists as synonyms of 'harm'-

‘damage, hurt, injury, destruction, impairment, mischief’

. Webster's New 20th Century Dictionary (2nd ed, 1959, p.827) lists as synonyms-

‘physical or material injury; hurt; damage; detriment;

misfortune.’

[Counsel for the defendant] urges that I construe 'harm' as 'injury' and notes that

‘there is no psychiatric evidence that any of these people suffered injury’…

I do not agree that 'harm' in s.21A(3) is limited to 'injury'. In my view, given the nature, scope, subject matter and object of s.21A, it is clear that the legislature did not intend 'mental harm' to be limited to 'mental injury' and to construe s.21A(3) in that restricted way would rob the legislation of much of its intended effect, both in relation to s.21A(1) & s.21A(5).

I consider that the legislature intended 'mental harm' to include 'mental or emotional hurt'. Though I agree with [counsel] that a mere 'mental reaction' falls short of 'mental harm', I consider that only the symptoms described by complainants 9 & 47 can properly be categorized as a reaction. Those charges are dismissed. Complainants 8 & 27 have referred only to an invasion of their privacy. A properly instructed trier of fact could not infer from this alone that either complainant has suffered mental hurt. Those charges are dismissed. Complainant 37 said-

"I felt this sort of thing is pathetic and that this person has abused our trust and working relationship."

Indeed it is and indeed he did. But that does not evidence mental hurt. That charge is dismissed.”

“Likely to cause harm or arouse apprehension or fear”

In order to make out the test of intent in s.4(2) of the SIOA, the evidence adduced by applicant must satisfy the court that the respondent knew or in all the particular circumstances ought to have understood that engaging in the impugned course of conduct would be-

likely to cause physical or mental harm to the affected person; or
likely to arouse in the affected person apprehension or fear for his or her own safety or that of another person.

A key word is “likely”. In Kokoszka v Crawford [Magistrates' Court of Victoria-Power M, unreported, case P00675109, 28/06/2002], counsel for the defendant had argued forcefully that the defendant’s covert conduct was not likely to cause the requisite harm, apprehension or fear because the whole purpose of the conduct was that it was to be done secretly. It was from the covert nature of the “upskirting” activity that the whole purpose and pleasure of the conduct was obtained by the defendant. The writer held (at pp.22-23):

“It is an interesting argument but on close analysis I do not agree with it. In my view it focuses too much on the offender and insufficiently on the victim. I have no doubt at all that the intrusion inherent in the defendant's 'up-skirting' activities would be likely - indeed very likely-- to cause, at the very least, apprehension and/or mental harm in even a mature and robust female target

if the target became aware of it

. Is the underlined qualification inherent in s.21A(3)? In my view it is.

Of the [various] examples of stalking set out in s.21A(2), at least one - surveillance - is an inherently covert activity. It is not hard to envisage scenarios in which the more sophisticated the surveillance, the greater the likelihood of the requisite harm being caused to the victim in the event of the cover being blown. Accordingly, I agree with the prosecutor's submission:

‘By its very nature surveillance is a covert operation and it would make nonsense of the Act if the defendant could conduct surveillance on a target victim over an extended period of time and ultimately be the subject of investigation [in which] the surveillance is uncovered and it wouldn't give rise to stalking.’

In my view, given the nature, scope, subject matter and object of s.21A, it is clear that the legislature did not intend that the likelihood of the course of conduct coming to the attention of the target was to be relevant in determining the likelihood of the requisite harm being caused to the target. To construe s.21A(3) in the contrary way urged by [counsel for the defendant] would rob the legislation of much of its intended effect.”

Requisite intent under s.4(2) of the SIOA & s.21A(3) of the Crimes Act 1958

An issue in R v Loc Tien Hoang (2007) 16 VR 369; (2007) 173 A Crim R 64; [2007] VSCA 117 was whether in order to prove the requisite intent under s.21A(3) of the Crimes Act 1958 the Crown was required to prove that the defendant subjectively intended to cause the complainant harm or to make her apprehensive or fearful. At [103]-[105] Neave JA (with whom Maxwell P & Eames JA agreed) said:

“The words ‘in all the particular circumstances ought to have understood’ import an objective element into the specific intent required for the offence where the course of conduct did cause mental harm or arouse apprehension or fear in the victim. In these circumstances, the required state of mind is not the actual state of mind of the offender, but what ‘that offender’ in those circumstances ‘ought to have understood’.

The policy rationale for this provision is clear. It may be that many stalkers falsely believe that they have a relationship with the person they pursue, even though they may have never met or spoken to the victim. A provision which required proof of a subjective intention to cause harm to the victim would not apply to an alleged stalker who obsessively pursued the victim on the basis of a false belief that these attentions were welcome. The reference to ‘in all the particular circumstances’ requires the jury to take account of the particular circumstances in which the course of conduct has occurred, in order to decide whether the accused ‘ought to have understood’ the effects of the behaviour on the victim.

The question is not whether Mr Hoang subjectively understood that the course of conduct in which he engaged would be likely to cause harm to the complainant, or arouse her apprehension or fear, but whether in all the particular circumstances he ought to have understood the effect of his behaviour on the complainant.”

“Course of conduct”

One aspect of the definition of stalking about which there is a significant amount of case law is the meaning of 'course of conduct'. In the related cases of Gunes v Pearson; Tunc v Pearson (1996) 89 A Crim R 297 at 306, McDonald J held:

"In order for conduct which is engaged in to be a 'course of conduct', the relevant conduct must be conduct which is protracted or conduct which is engaged in on more than one separate occasion".

This dicta was approved and applied by Nettle J in Berlyn v Brouskos [2002] VSC 377 at [24]-[25]:

“I consider that

Gunes

was correctly decided. The essence of stalking under the American model, and thus I think an essential element of stalking as defined by s. 21A of the

Crimes Act

, is a course of conduct of the kind prescribed in the California Penal Code (cf.

Director of Public Prosecutions v Sutcliffe

[2001] VSC 43 esp. at [87]-[93] per Gillard J; and see Wiener,

Stalking, Criminal Responsibility and the infliction of harm

(1995) 69 LIJ 30 at 32). And for the reasons already given that means that there must be a pattern of conduct evidencing a continuity of purpose (assuming as suggested above the importation of a similar conception of course of conduct to that adopted in the American legislation). Indeed, for those reasons, s. 21A is in some respects more limited than the legislation in other Australian States, which speaks only in terms of proscribed conduct on at least two occasions, or on one, as in New South Wales, without the requirement of a course of conduct evidencing a continuity of purpose. It is readily conceivable that conduct on two separate occasions may not always constitute a pattern of conduct evidencing a continuity of purpose and it is unlikely that conduct on only one occasion could constitute a pattern of conduct evidencing a continuity of purpose, unless the conduct were protracted. In order to constitute a pattern of conduct there must be something more, and I think with respect that McDonald J was correct when his Honour said in

Gunes

, in effect, that the something more is that the conduct must be engaged in on more than one occasion, or it must be protracted.

That is not to suggest that proscribed conduct which is engaged in on more than one occasion or which is protracted will necessarily constitute a course of conduct evidencing a continuity of purpose. It may not, and I do not take McDonald J to have suggested otherwise. Something additional about the conduct or the surrounding circumstances will need to be shown before it can be said of the conduct that it amounts to a pattern of conduct evidencing a continuity of purpose. But I think that for all intents and purposes, it will not be open to say of conduct that it amounts to a course of conduct unless it is engaged in on more than one occasion or unless it is protracted; whatever else may need to be shown.”

See also Thomas v Campbell [2003] VSC 460 at [42]-[51] per Nettle J; R v Loc Tien Hoang (2007) 16 VR 369; (2007) 173 A Crim R 64; [2007] VSCA 117 at [92]-[95] per Neave JA (with whom Maxwell P & Eames JA agreed).

In Nadarajamoorthy v Moreton [2003] VSC 283 at [28], Bongiorno J allowed an appeal against a Magistrate's finding that the appellant was of guilty of 2 offences of stalking. At [28] his Honour said:

"In

Berlyn v Brouskos

…Nettle J adopted the above passage from

Gunes v Pearson

, but, confronted with a more marginal case on the facts, he looked to the origins of the legislation and found that 'there must be a pattern of conduct evidencing a continuity of purpose' which requires something more than protracted conduct, or conduct on more than one occasion."

The first of the two charges arose from a protest action by some temple members, including the appellant, which involved the handing out of leaflets and the erection of a banner accusing the president of the temple, the priest and others of criminal, immoral and other bad behaviour which was said to be contrary to the Hindu religion. In allowing the appeal, Bongiorno J said at [31]-[33]:

"The charge in relation to this offence was stalking by loitering near a place frequented by the victim. Thus the charge cites actions falling within s21A(2)(c) of the

Crimes Act

1958…Counsel submitted that loitering must involve an illegal purpose and relied on the case of

Wynne v Lockyer

[1978] VR 279, a decision of Harris J, on the meaning of 'loiters' in the Vagrancy Act 1966.

The matters set out in s21A(2)(a) to (f) are actions which are not necessarily unlawful. It is the confluence of these actions in a course of conduct directed to a person with a specific intent and a specific result which constitutes the criminality. The purpose of the section is to extend the law and render illegal actions which did not constitute offences at the time it was enacted. There is no basis for reading into the word 'loitering' as it appears in this section any notion of necessarily unlawful purpose. However, it does seem that the word must mean more than simply 'be and remain at'. It conveys a concept of idleness, lack of purpose or indolence. In the context of the statutory provision under consideration, s 21A(2)(c), loitering must mean being and remaining at or near the places specified for at least one or more of the purposes specified in s 21A(2), namely causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety or that of any other person. In other words it must have a similar meaning to that which Harris J, held it had in the

Vagrancy Act

Wynne v Lockyer

save that the intent which must be proved here is not the intention to commit a felony but rather the intention set out in the sub-section. Where the person accused is engaging in activities at the relevant time which render a description of 'loitering' inapt in the circumstances he will not be guilty of stalking by engaging in the activity described in s 21(A)(2)(c) of the

Crimes Act

, whatever else he may be guilty of.

As in order to find the charge proved the Magistrate would have had to be satisfied that the appellant was 'loitering', in a circumstantial case such as this he would have had to exclude all reasonable hypotheses consistent with his not having been 'loitering' beyond reasonable doubt. Having regard to his findings as to what the various parties (including the appellant) were doing at the temple on the relevant date regarding the protest which was in progress and the appellant's part in it he could not have excluded beyond reasonable doubt the possibility that the appellant was there for a purpose or purposes other than one of the statutory purposes set out in s 21A(2). Thus he could not exclude the possibility that he was not loitering within the meaning of the section. The protest, as found by the Magistrate, involved more people than just the appellant, was directed at an audience wider than the alleged victim and involved acts (such as handing out pamphlets) which were inconsistent with the concept of 'loitering' as set out in the Act."

The second charge arose from an incident in which a van driven by the appellant drove too close to and tail-gated a car in which the alleged victim was a passenger and the victim's solicitor was the driver. The appellant drove for some distance side by side with the solicitor's car during which time a passenger in the appellant's van projected his arm out of the vehicle and made threatening arm and fist movements. Both vehicles were travelling at about 80 kilometres per hour. When tail-gating, the appellant's van was 6-7 feet away and ran parallel to the solicitor's car for 3-4 minutes. Eventually the van overtook the car and presumably no further harassment occurred. In allowing the appeal, Bongiorno J said at [39]-[40]:

"The findings made by the Magistrate do not justify a conclusion that the appellant engaged in conduct which was so protracted as to constitute the course of conduct contemplated by the anti-stalking statute. At worst the appellant engaged in an episode of harassment of short duration and, happily, of no ultimate consequence. Illegal as this might be (as a driving offence) it does not constitute stalking.

The offence of stalking carries a maximum penalty of 10 years imprisonment. It is a serious indictable criminal offence. The conduct comprising it must be unambiguously a course of conduct engaged in for the prohibited purpose and which actually has the intended result. This is not to say that there would never be occasions when harassment on the highway could constitute stalking. If the course of conduct engaged in was protracted enough and had the other requisite characteristics then it would be open to a tribunal of fact to find that such conduct engaged in by driving a motor vehicle in a particular way could constitute stalking. In the present instance the conduct was not protracted enough to fall within the statutory requirement of a 'course of conduct' nor was there a sufficient 'pattern of conduct evidencing a continuity of purpose' as referred to by Nettle J, in

Berlyn v Brouskos

[2002] VSC 377."

Stalking by surveillance

In allowing the appellant’s appeal and entering a verdict of acquittal in R v Anders [2009] VSCA 7 Redlich JA, with whom Vincent & Kellam JJA agreed, said at [27]-[28]:

[27] “The appellant submitted that the taking of photographs did not amount to stalking any more than looking at a victim. Such a proposition is too broad. Surveillance includes the use of cameras and other electrical equipment that enables the offender to keep watch over the victim by recording the victim’s movements or activity. The elements of the offence may be satisfied where the course of conduct includes photographing the victim. That may constitute the only conduct so long as it occurs on a sufficient number of occasions to be a course of conduct evidencing a continuity of purpose and involving the necessary intent in relation to the victim.

[28] Stalking by surveillance may be made out by keeping watch over a location with the intent of observing or recording a specific victim’s movements. But there was no focus in the trial upon the requirement that the appellant have the intent during the period alleged to keep the complainant under surveillance. A continuity of purpose in relation to the complainant was essential. It was for this reason that the Director acknowledged that the evidence of photos of other boys taken at the same location during the same period, did not assist the prosecution’s task of establishing that the appellant had a specific intent to stalk the complainant. It would not have been enough to prove an intention to photograph young boys at random as they happened to pass by his camp site and that co-incidentally the same boy was photographed on more than one occasion. The jury directions permitted a finding of guilt on this broad basis. Thus the trial, also miscarried on this ground.”

Application for stalking intervention order

Who may make application?

Under s.11(1) of the SIOA, an application for an intervention order may be made by:

Joint applications

Section 11(4) of the SIOA permits an application in respect of an affected person who is a child to be included in an application in respect of the child's parent if the applications arise out of the same or similar circumstances. It follows from s.11(5) that such joint applications may either be heard separately or together as the court thinks fit. Section 11(6) allows any number of applications against the same respondent to be heard together if the court thinks fit.

In deciding if it is appropriate to hear applications separately or concurrently the Court will normally accord the convenience of the parties significant weight. However severance is likely if the Court considers that there is a potential conflict of interest between an adult and a child or if there are protective concerns which justify a transfer to the Children's Court of an application in respect of a child.

Summons or Warrant

Under s.15 of the SIOA, if an application has been made for a stalking intervention order:

By contrast with s.50 of the FVPA there is no prohibition in the SIOA against issuing a warrant to arrest a child respondent.

The Bail Act 1977 (Vic) applies to and in respect of a respondent to an application for a stalking intervention order arrested under a warrant as if the respondent were an accused person charged with an offence to whom s.4 of the Bail Act applies: s.48(1). The registrar or police officer must advise the affected person of the outcome of the application for bail: s.48(2).

Service/Substituted service

Service of application for intervention order

Under s.17(2) of the SIOA, an application for an intervention order must be served on the respondent by:

Section 17(1) of the SIOA requires an applicant who is not the affected person to arrange for a copy of the application to be served personally-

Section 17(3) empowers the court to make an order for substituted service if it appears, by evidence on oath or by affidavit, that service cannot be promptly effected.

Service of application for variation, revocation or extension

Under s.27(1) of the SIOA, an applicant for an order to vary, revoke or extend an intervention order must cause a copy of the application be served on-

Section 27(2) provides that a copy of such application may be served by:

If it appears to the court that it is not reasonably practicable to serve a copy of the application in accordance with s.27(2), the court is empowered by s.27(3) to-

Service of intervention order

If the court makes, varies, extends or revokes an intervention order (whether interim or final), s.29(1) of the SIOA requires the registrar of the court to-

If it appears to the court that it is not reasonably practicable to serve a copy of an order personally, the court is empowered by s.29(2) to-

Procedure

Procedure in absence of respondent

If a summons has been served on the respondent or the respondent has been bailed to appear at the hearing of an application for an intervention order and the respondent fails to appear, s.18(2) of the SIOA empowers the court to-

It is clear from s.18 of the SIOA that the court cannot make a final intervention order unless a summons has been served on the respondent or the respondent has been bailed to appear at the hearing of the application.

Procedure in third party applications

Under s.19 of the SIOA if an application for a stalking intervention order or an application to vary, revoke or extend is made by a person other than the affected person or a police officer, the court must not commence or continue the hearing of the application if-

the affected person; or
if the affected person is a child, the parent (if any) who consented under s.11(1)(c)(iii) to the making of the application for an intervention order-

objects to the application being heard and determined. However, this prohibition does not apply if the applicant to vary, revoke or extend is the respondent.

Informal procedure – Balance of probabilities - Role of the rules of evidence

Under s.215(1) of the CYFA, the Family Division of the Children’s Court:

Section 20 of the SIOA is not as broad as s.215(1)(d) of the CYFA. It provides that the court-

may inform itself on a matter in such manner as it thinks fit, despite any rules of evidence to the contrary; and
is not required to receive evidence from the affected person before making the order concerned-

in any hearing of an application for-

In the hearing of an application for an intervention order where there are joint applicants – both adult and child – the dispensation in s.20(2) applies only in relation to the affected persons who are children [s.20(3)].

Since s.20 of the SIOA is a later enactment than s.215(1)(d) of the CYFA and is expressed in specific rather than general terms, it appears to the writer that s.20 takes precedence over s.215(1)(d) for proceedings in the Children’s Court in the event of any inconsistency between the two statutory provisions.

However, there do not appear to be any provisions of the SIOA which are actually or potentially inconsistent with ss.215(1)(a), 215(1)(b) & 215(1)(c) of the CYFA. In particular, the principle in s.215(1)(c) that evidence be considered on the balance of probabilities is also enshrined in the SIOA: see, for example, s.7(1).

Restriction on evidence by and presence of children

Section 21 of the SIOA provides that a child (other than a child who is the respondent in proceedings under the SIOA) who is-

Restriction on publication of proceedings

Stringent restrictions on publication (except with the permission of the President) of-

likely to lead to the identification of a child, party, witness or venue; and
a picture of a child, party or witness; and
any matter containing particulars likely to lead to the identification of a child as being the subject of an order made by the Court-

are set out in s.534 of the CYFA. Breach of such restrictions is an offence punishable by fine or imprisonment.

Section 49 of the SIOA contains broadly similar restrictions in cases under the SIOA in which a party to, or witness in, proceedings under the SIOA is a child.

Interim stalking intervention order

Power to make interim order

If an application for a stalking intervention order has been made, s.13(1) of the SIOA empowers the court to make an interim intervention order if satisfied that it is necessary to ensure the safety of the affected person or to preserve any property of the affected person pending the hearing and determination of the application.

It is clear that an interim intervention order may be made in the absence of the respondent and whether or not a copy of the application has been served on the respondent: see ss.13(2) & 13(5) of the SIOA.

Section 13(4) provides that except in the case of an application made under s.14 by telephone or facsimile machine, the court must not make an interim order unless the application is supported by oral evidence.

Interim order/warrant issued by telephone or facsimile

Section 14(1) of the SIOA provides that a police officer may apply for an intervention order by telephone or facsimile machine if the police officer is seeking an interim order until the final order may be determined and-

the application is made before 9am or after 5pm on a weekday or on a Saturday, Sunday or public holiday; or
the distance from the nearest venue of the court where the court is sitting is so great that it is impracticable to make the application in preson.

Before applying by telephone or fax, s.14(2) requires the police officer to complete an application, on oath or by affidavit or certified, that sets out-

On an application made by telephone or facsimile machine, the court is not bound by the rules of evidence [s.14(3)]. On an application made by telephone, the court may, if practicable, hear the respondent or the affected person or both [s.14(4)].

If the court makes an interim order under s.13 on an application under s.14 made by telephone or facsimile machine, s.14(5) of the SIOA requires the court to inform the applicant police officer of-

A protocol between the Magistrates' Court, the Children’s Court and Victoria Police enables a police officer who wishes to make an after-hours application for an intervention order:

to apply to the after-hours duty registrar pursuant to s.15 of the SIOA for a warrant to arrest the respondent as if the application alleged the commission of an offence; or
to apply to an after-hours magistrate via the duty registrar for an interim intervention order pursuant to s.14 of the SIOA.

If a warrant is issued, it is often endorsed with conditions of bail which replicate the prohibitions or restrictions sought by the applicant.

Conditions in stalking intervention orders

A non-exhaustive list of conditions

Section 8(1) of the SIOA sets out a non-exhaustive list of conditions which may be included in a final order and, by virtue of s.13(3) may also be included in an interim order. As well as any other conditions the court considers necessary or desirable, a stalking intervention order may do all or any of the following:

Restriction or prohibition of respondent’s access to premises

Before making an intervention order that restricts or prohibits a respondent’s access to any premises, s.8(2) requires the court to take into account:

Cancellation or suspension of firearms authority

Before making a stalking intervention order, s.9(1) of the SIOA requires the court to enquire whether the respondent holds a firearms authority, being “a licence, permit or other authority under the Firearms Act 1996 to possess, carry or use firearms” [s.3].

If the court makes an interim order, the order may suspend the respondent’s firearms authority [s.9(2)].

If the court makes a final order, the order may cancel the respondent’s firearms authority [s.9(3)].

Section 9(4) declares that if the court decides to suspend under s.9(2) or cancel under s.9(3) the respondent’s firearms authority-

Courtlink conditions

The Courtlink computer systems of the Magistrates' & Children's Courts contain the following pro-forma prohibitions or restrictions which are based on ss.8 & 9 of the SIOA:

The respondent is prohibited from:

VS1
stalking, assaulting, harassing, threatening or behaving offensively towards the affected person(s);

VS2
approaching, contacting or communicating with the affected person(s) in any way except:

to participate in mediation by prior agreement with the affected person(s), or
by order of any court, or
through a lawyer, or
in the company of a police officer

VS3
approaching, contacting or communicating with the affected person(s) in any way;

VS4
approaching or remaining within ……metres of the affected person(s);

BPR2
knowingly being at or within……metres of ………………………………………or any premises where any affected person lives, works, attends school or childcare except in the company of a police officer;

VS5
damaging, threatening to damage or interfering with any property of the affected person(s);

ENG
causing another person to behave in a way that is prohibited by this order.

SUR
following the affected person(s) or keeping him/her/them under surveillance

COM
publishing on the internet or by email or other electronic communication any material relating to or purporting to relate to or originate from the affected person(s).

FIR1
Until further order, if the respondent has a firearms authority, it is suspended and the respondent must hand any firearms in his possession to police immediately.

FIR2
If the respondent has a firearms authority, it is cancelled. If the respondent has firearms in his/her possession, (s)he must hand them to police immediately.

REF
The respondent agrees to contact the Men’s Referral Service (9248 2899 or 1800 065 973) to obtain information about any services that may assist him.

Consent orders

Section 22 of the SIOA provides-

This section – which is in similar terms to s.14 of the CFVA – overrides the decision of Smith J in Stephens v Melis and The Magistrates Court at Moe [2002] VSC 263 which had held that an earlier version of s.14 did not obviate the need for the court to find relevant jurisdictional facts: see especially at [38]-[41].

However, s.22 of the SIOA appears to be broader than s.14 of the CFVA, which had referred to the making of an intervention order by consent. An earlier version of s.14 had referred to the making of any order under the CFVA by consent, thus clearly including orders varying, revoking or extending an intervention order. Section 22, by contrast, refers to “parties to a proceeding for an intervention order” consenting. Is “proceeding for an intervention order” broad enough to include a proceeding to vary, revoke or extend an intervention order? The writer believes so.

On the other hand, unlike ss.53 & 78 of the FVPA, neither s.22 of the SIOA not s.14 of the CFVA provide for the making of orders if unopposed by the respondent and there is a world of difference between consenting to something and not opposing something.

Explanation of stalking intervention order

Before making an intervention order, s.23 of the SIOA requires the court to explain to the respondent (if present before the court)-

Costs in stalking intervention order proceedings

Section 50(1) of the SIOA provides that each party to proceedings under the SIOA must bear his or her own costs of those proceedings unless the court decides that exceptional circumstances warrant otherwise. Under s.50(2) if the court is satisfied that the making of any application under the SIOA was vexatious, frivolous or in bad faith, the court may award costs against the applicant.

Though there is no direct caselaw on the operation of s.50 of the SIOA, there is precedent in the Family Court of Australia that a costs order made in family law proceedings-

in the absence of the other party and without notice to that party; or
without affording the parties an opportunity to be heard-

Search of premises – Search warrant - Seizure of firearms

Section 34 of the SIOA empowers a police officer, without warrant, to enter and search any premises where the officer on reasonable grounds believes a person to be if-

the officer reasonably believes a person is on the premises in contravention of an intervention order; or
the officer has the express or implied consent of an occupier of the premises to do so.

Section 37(2) of the SIOA empowers a magistrate, upon application by a police officer supported by evidence on oath, whether oral or by affidavit, to issue a search warrant authorizing the police officer named in the warrant and any assistants the police officer considers necessary-

The pre-conditions for the issue of a search warrant under s.37(2) are that the magistrate is satisfied there are reasonable grounds for suspecting that-

an offence against the SIOA is being or is about to be committed; or
the person is in possession of a firearm, a firearms authority or ammunition.

The matters which must be stated in a search warrant issued under s.37(2) are set out in s.37(3). A search warrant must be issued in accordance with the Magistrates’ Court Act 1989 (Vic) and in the prescribed form under that Act: s.37(4).

Section 35 of the SIOA empowers a police officer to direct a person to surrender a firearm, firearms authority or ammunition where-

Section 36 of the SIOA empowers a police officer, without warrant, to enter and search any premises at which a person resides or has resided or at which the person committed or allegedly committed stalking or a vehicle registered in the person’s name if-

Section 40 provides that if a person fails to comply with a direction under s.35(2) or a police officer searches premises under s.36(2), the police officer-

The effect of seizure of a firearm, firearms authority or ammunition is detailed-

in s.41 in the case where a final order has been made against the person; and
in s.42 in other cases.

Stalking intervention order prevails over order under CYFA

Pursuant to s.51 of the SIOA, an intervention order or interim intervention order made under the SIOA applies despite any order under the CYFA.

Variation, revocation and extension

Section 25(1) of the SIOA empowers the court to order the variation, revocation or extension of an existing stalking intervention order on an application under s.26. See Miles v Barca [2003] VSC 376 at [24] in relation to the predecessor s.16 of the CFVA.

However, s.25(2) prevents the court from ordering that a stalking intervention order be varied or revoked on the application of the respondent unless there has been a change in the circumstances in which the order was made.

Under s.26(3) of the SIOA an application to vary, revoke or extend an intervention order may be made to the court by:

Under s.26(1), if the applicant is not a police officer or the affected person or the respondent, the application may only be made with the written consent of the affected person or the parent of a child referred to in s.26(1)(b).

Provisions in relation to service of such application are contained in s.27.

Contravention

The SIOA uses the term “contravention” to describe what the CFVA called a “breach” of an intervention order. The rationale for the changed terminology is to emphasise that an intervention order is a civil order of the Magistrates’ Court or Children’s Court. However, whatever label is used, contravention or breach proceedings are criminal proceedings in which the Children’s Court can only be satisfied of an accused child’s guilt beyond reasonable doubt by relevant and admissible evidence: see s.357(1) of the CYPA.

In Miles v Barca [2003] VSC 376 Byrne J said at [26]: "The making of an intervention order is a serious matter carrying very serious consequences." Contravention of an intervention order is a summary offence which, for a child, is dealt with in the Criminal Division of the Children’s Court. See also R v Duncan [2007] VSCA 137 at [37] per Vincent JA.

Section 32 of the SIOA provides that a person against whom an intervention order has been made and who-

Section 33 of the SIOA empowers a police officer to arrest without warrant a person whom he or she believes on reasonable grounds to have committed an offence against s.123.

Interstate and New Zealand Orders

Sections 43 & 46 of the SIOA provide for registration of corresponding interstate and New Zealand orders [defined in s.3].

Sections 44 & 47 allow a registered corresponding interstate and New Zealand order to be enforced in Victoria as if they were final orders under the SIOA.

Section 45 empowers a Victorian court to vary, extend or revoke a registered corresponding interstate order.

Rehearing

Just as in the CFVA and unlike the FVPA, there is no express power in the SIOA to order a rehearing of a complaint for an intervention order where a party did not appear at the hearing of the complaint. However, a power can be inferred from the Magistrates’ Court rules. In Miles v Barca [2003] VSC 376 at [23], Byrne J affirmed the power of a Magistrate sitting in the Magistrates' Court to order a rehearing of a complaint for an intervention order where a party did not appear at the hearing of the complaint:

"An application for an intervention order is a proceeding which is civil in character. It follows from this that, unless for some reason they are inconsistent with the Crimes (Family Violence) Act 1987 or the rules made under that Act, the statutory, regulatory and other practices of the Magistrates' Court in its civil jurisdiction will apply to these applications. I would accept that this equally applies to the jurisdiction to make such orders under the Crimes Act 1958 s.21A; these include s.110 of the Magistrates' Court Act 1989 and O.30 of the Magistrates' Court Civil Procedure Rules 1989 dealing with the power to order a rehearing where a party did not appear at the hearing of a complaint."

But anomalously it seems that a Magistrate sitting in the Children's Court has no statutory power to order a rehearing. Section 528(2) of the CYFA provides that the Magistrates' Court Act 1989 (except Part 5) and the regulations made under that Act apply with any necessary modifications, unless the contrary intention appears in the CYFA or in any other Act, to the Children's Court and the proceedings of both Divisions of the Court. But the rehearing provision, s.110, is in Part 5 of the Magistrates' Court Act 1989. It is unlikely that it was intended that the Children's Court have no statutory power to order a rehearing but that is clearly the effect of the legislation.

However, quite apart from statute, courts retain an implied power to set aside their orders ex debito justitiae. The principle was referred to in Chamberlain v Deputy Commissioner of Taxation (1991) 98 ALR 617 at 619:

"The processes of the Supreme Court, which were designed to facilitate entry of judgment and for the convenience of litigants and practitioners, were improperly used. What occurred was an abuse of process. The Deputy Commissioner was entitled to come to court to have the judgment set aside,

ex debito justitiae

, for the mistake of his officers was a mistake as to the subject matter of the consent, which Mr Chamberlain well knew and took advantage of."

It is the writer's opinion that a judicial officer in the Children's Court does have limited power to set aside, ex debito justitiae, an order, at least in circumstances where there has been an abuse of process.

Appeal

By Respondent

Section 30 of the SIOA empowers a respondent to appeal to the County Court (or to the Trial Division of the Supreme Court if the order was made by the President) against:

the making of a final intervention order; or
the making of, or refusal to make an order, under s.25; or
any term of such an order.

See Peng Yuan Gao v Yan Zhang [2002] VSCA 19 at [12].

The giving of notice to appeal does not stay the operation of the order but the court which made the order may, on application of the respondent, stay the operation of the order or any term thereof pending the decision of the appeal: s.30(3). In staying the operation of the order or any term of the order the court may impose bail conditions on the appellant as though the appellant were an accused person being released from custody on bail: s.30(7).

Curiously, in s.30 there is no equivalent of s.31(5) which makes it clear that an appeal by an applicant is a hearing de novo. However, there seems no reason why an appeal by a respondent should be treated in any other way. The provisions of the CYFA or the Magistrates' Court Act 1989 [as amended] apply with any necessary modification to such an appeal: s.30(9) of the SIOA.

By Applicant

Section 31 of the SIOA empowers an applicant (including an applicant for an order under s.25) to appeal to the County Court (or to the Trial Division of the Supreme Court if the proceeding was heard by the President) if the court decides:

It is clear from s.31(5) that such an appeal is a hearing de novo. No further avenue of appeal is open against any order made by the County Court or Supreme Court on appeal: s.31(6). The provisions of the CYFA or the Magistrates' Court Act 1989 [as amended] apply with any necessary modification to such an appeal: s.31(7) of the SIOA.

If the application for the intervention order was made by a person other than the affected person or a police officer, s.31(8) provides that the appeal court must not commence or continue the hearing of the appeal if-

Regulations, Rules, Practice Directions & Forms

Regulations

Section 55 of the SIOA empowers the Governor in Council to make regulations for or with respect to any matter or thing required or permitted by the SIOA to be prescribed or necessary to be prescribed to give effect to the SIOA. The Stalking Intervention Orders Regulations 2008 [S.R. No.152 of 2008] came into operation on 08/12/2008.

Rules & Practice Directions for the Children’s Court

Section 54 of the SIOA empowers the President of the Children’s Court, together with 2 or more magistrates of the court, to make rules for and with respect to proceedings in the court in relation to applications and orders made under the SIOA, including the non-exhaustive list of matters set out in s.54(2). No rules have yet been made.

The power of the President of the Children’s Court to issue practice directions, statements or notes for the court under s.592 of the CYFA includes power to issue practice directions, statements or notes for the Children’s Court in relation to proceedings under the SIOA [s.54(4)]. No such practice directions, statements or notes have yet been issued.

Rules & Practice Directions for the Magistrates’ Court

Section 53 of the SIOA confers a similar rule-making power on the Chief Magistrate, together with 2 or more Deputy Chief Magistrates. No rules have yet been made under the SIOA.

The power of the Chief Magistrate to issue practice directions, statements or notes for the court under s.16A of the Magistrates’ Court Act 1989 (Vic) in relation to civil proceedings includes power to issue practice directions, statements or notes for the Children’s Court in relation to proceedings under the FVPA [s.53(4)]. No such practice directions, statements or notes have yet been issued.

Forms

There are currently no prescribed forms either in the SIOA or in Regulations or Rules but informal forms have been created for use in the Magistrates’ Court and in the Children’s Court. A list of the relevant Children’s Court forms will be included in this paragraph shortly.

Power to bind over to keep the peace

There is a power, first invested in Justices of the Peace and now in Magistrates, to bind a person over to keep the peace where he or she has engaged in various types of offensive conduct against another person. The origins of the power date back to the 12th century. The power is now to be found in s.126A of the Magistrates’ Court Act 1989:

“(1) The Court may, on the written application of a person, order another person to enter into a bond, with or without surety or sureties, to keep the peace or to be of good behaviour.

(4) The Court may order that a defendant who does not comply with an order under s.126A(1) may be imprisoned until he or she does comply with it or for 12 months whichever is the shorter.”

A detailed discussion of the history and operation of the binding over power is contained in a paper entitled “An Honour and Almost a Singular One – A Review of the Justices’ Preventive Jurisdiction” [Monash University Law Review, Vol.8, Issue 2, December 1981].

There is a similarity between this ancient power and the power under the SIOA to make and to deal with the contravention of a stalking intervention order. In particular, the writer believes that the binding over power remains useful to cover the gap where the conduct which puts another person in fear or apprehension is not sufficiently protracted to constitute a course of conduct under the SIOA.

Legislation

Family Violence Protection Act 2008
Stalking Intervention Orders Act 2008
Children, Youth and Families Act 2005

Legislation of the State of Victoria is available on the Victorian Legislation and Parliamentary Documents website.