Family Violence Protection Amendment Regulations 2013 (Vic)

Family Violence Protection Amendment Regulations 2013

S.R. No. 40/2013

TABLE OF PROVISIONS

Regulation  Page

1Objective

2Authorising provision

3Commencement

4Principal Regulations

5Corresponding interstate laws

6New regulation 10A inserted

10AExplanation of a final order

7Amendments to Form 2

8New Form 2A inserted

Form 2A—Explanation of final order

9Certificate of non attendance at assessment interview

10Certificate of non attendance at counselling

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ENDNOTES

STATUTORY RULES 2013

S.R. No. 40/2013

Family Violence Protection Act 2008

Family Violence Protection Amendment Regulations 2013

The Lieutenant-Governor as the Governor's deputy with the advice of the Executive Council makes the following Regulations:

Dated: 16 April 2013

Responsible Minister:

ROBERT CLARK
Attorney-General

YVETTE CARISBROOKE

Clerk of the Executive Council

1Objective

The objective of these Regulations is to amend the Family Violence Protection Regulations 2008—

(a)to make consequential amendments as a consequence of certain provisions of the Justice Legislation Amendment (Family Violence and Other Matters) Act 2012; and

(b)to update the laws prescribed as corresponding interstate laws; and

(c)to prescribe a new Form for the purposes of the Family Violence Protection Act 2008; and

(d)to update other Forms.

2Authorising provision

These Regulations are made under section 211 of the Family Violence Protection Act 2008.

3Commencement

These Regulations come into operation on 17 April 2013.

4Principal Regulations

In these Regulations, the Family Violence Protection Regulations 2008[1] are called the Principal Regulations.

5Corresponding interstate laws

(1)For regulation 6(a) of the Principal Regulations substitute—

"(a)the Domestic Violence and Protection Orders Act 2008 of the Australian Capital Territory;".

(2)For regulation 6(d) of the Principal Regulations substitute—

"(d)the Domestic and Family Violence Protection Act 2012 of Queensland;".

(3)For regulation 6(e) of the Principal Regulations substitute—

"(e)the Intervention Orders (Prevention of Abuse) Act 2009 of South Australia;".

6New regulation 10A inserted

After regulation 10 of the Principal Regulations insert—

"10A   Explanation of a final order

For the purposes of section 96(3) of the Act, the written notice must be in the form of Form 2A.".

7Amendments to Form 2

(1)In Item 1 of Form 2 of the Principal Regulations, after "Magistrates’ Court" insert "or the Children's Court".

(2)In Item 2 of Form 2 of the Principal Regulations, for "by 2 years imprisonment or a fine of 240 penalty units ** or both" substitute "by imprisonment or a fine or both (see Item 8 below)".

(3)In Item 6 of Form 2 of the Principal Regulations, for "affected family member(s)" substitute "protected person(s)".

(4)In Item 8 of Form 2 of the Principal Regulations, after "or both." insert "In some circumstances, a higher penalty of 5 years imprisonment or a fine of 600 penalty units ** or both may apply. For example, where—

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

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

(5)In Item 9 of Form 2 of the Principal Regulations, for "Court" substitute "court". 

(6)In Item 17 of Form 2 of the Principal Regulations, for "Act" substitute "Family Violence Protection Act 2008".

(7)In Item 19 of Form 2 of the Principal Regulations, for "Act" substitute "Family Violence Protection Act 2008".

(8)After Item 24 of Form 2 of the Principal Regulations insert—

"Can an interim order be enforced in another state or a territory?

25.Yes.  A Victorian interim order may be enforced in some other Australian states or territories if registered. If it is registered, the interim order will be enforced under the law of that state or territory relating to protection from family or domestic violence.

26.If a protected person wishes to be protected in another jurisdiction they should contact the local court in that jurisdiction about registering an interim order.

27.Respondents travelling to other states or territories should check with the local court to see if an interim order has been registered in that state or territory.".

(9)In Form 2 of the Principal Regulations, for "Immigrant Women’s Domestic Violence Service" substitute "inTouch Multicultural Centre Against Family Violence".

(10)In the note at the end of Form 2 of the Principal Regulations, for "1 July 2008 is $113.42." substitute "[1 July YEAR] is $xxx.xx [insert current dollar value of penalty unit to 2 decimal places].".

8New Form 2A inserted

After Form 2 of the Principal Regulations insert—

'FORM 2A

Regulation 10A

EXPLANATION OF FINAL ORDER

What is a final family violence intervention order?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How long does a final order last?

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

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

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

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

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

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

What if there is a Family Law Act 1975 order?

16.If there is a Family Law Act 1975 order in force, the magistrate who made the final order may have changed or suspended the Family Law Act order if it was inconsistent with the final order. The magistrate may have also revived the Family Law Act order. The purpose of the change, suspension or revival of the Family Law Act order is to prevent the respondent from committing family violence against a protected person (including preventing a child hearing or witnessing violence).

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

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

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

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

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

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

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

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

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

Firearms and weapons

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

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

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

Effect of firearms or weapons condition

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

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

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

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

Can a final order be enforced in another state or a territory or New Zealand?

30.Yes.  A Victorian final order may be enforced in any other Australian state or territory or in New Zealand if registered.  If it is registered, the final order will be enforced under the law of that state or territory or New Zealand relating to protection from family or domestic violence.

31.If a protected person wishes to be protected in another jurisdiction they should contact the local court in that jurisdiction about what to do to register a final order.

32.Respondents travelling to another jurisdiction should check with the local court to see if a final order has been registered in that jurisdiction.

Contacts

Legal advice

Victoria Legal Aid provides free legal advice and referrals.

[insert contact details]

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

[insert contact details]

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

[insert contact details]

Key support services

The Women's Domestic Violence Crisis Service provides crisis support and referral for women experiencing family violence.

[insert contact details]

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

[insert contact details]

Elizabeth Hoffman House Aboriginal Women's Family Violence Services provides crisis accommodation and support for Aboriginal women and spouses of Aboriginal men.

[insert contact details]

The following support services are available to help men who use violence toward their families.

Men's Referral Service

[insert contact details]

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

Salvation Army Crisis Services

[insert contact details]

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

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

**Note:   The value of a penalty unit for the financial year commencing [1 July YEAR] is $xxx.xx [insert current dollar value of penalty unit to 2 decimal places].  The amount of the calculated penalty may be rounded to the nearest dollar.

The value of a penalty unit for future financial years is to be fixed by the Treasurer.

__________________'.

9Certificate of non attendance at assessment interview

In Form 3 of the Principal Regulations, for "Family Violence Court Division" (wherever occurring) substitute "Magistrates' Court".

10Certificate of non attendance at counselling

In Form 4 of the Principal Regulations, for "Family Violence Court Division" (wherever occurring) substitute "Magistrates' Court".

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ENDNOTES

[1] Reg. 4: S.R. No. 153/2008.