Untitled document
Family Violence Protection Amendment Act 2017
No. 19 of 2017
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
3Principal Act
Part 2—Amendment of the Family Violence Protection Act 2008
Division 1—Family violence intervention orders protecting children
4Meaning of family violence intervention order, final order and interim order
5New section 52A inserted
6Court may make interim order
7New sections 53AA and 53AB inserted
8New section 73I inserted
9Power of court to make final order
10Section 77 substituted and new sections 77A and 77B inserted
11Consent orders
12Power of court to vary or revoke family violence intervention order
13Protection for children who have become family members since order made
14Further application for variation etc. of order in respect of child
15Service of family violence intervention orders
16Transitional provision inserted
Division 2—Explanations of family violence intervention orders
17Explanation of interim order
18New section 57A inserted
19Explanation of final order
20New section 96A inserted
21Contravention of family violence intervention order
22Contravention of order intending to cause harm or fear for safety
23Service of family violence intervention orders
24Transitional provision inserted
Division 3—Alternative service
25 Address for service
26Excluded person to provide new address
27Rehearing of certain proceeding
28Section 202 substituted and new sections 202A, 202B and 202C inserted
29Disclosure of information by organisations
30Transitional provision
Division 4—Other amendments to the Principal Act
31Definitions
32Family violence safety notice taken to be application for family violence intervention order
33New sections 118A and 118B inserted
34Definitions
35Order to assess eligibility for counselling
36Order to attend counselling
37Section 133 substituted
38Variation or revocation of counselling orders
39Section 144 substituted
40New Division 11 of Part 14 inserted
41Statute law revision
Part 3—Amendment of the Coroners Act 2008
42Definitions
43New Division 1C inserted in Part 8
44Publication of findings and reports
45Annual report
Part 4—Amendment of the County Court Act 1958 and Magistrates' Court Act 1989
Division 1—Amendment of the County Court Act 1958
46Circumstances in which Koori Court Division may deal with contravention of a sentence imposed by it or by another Division of the County Court
47Circumstances in which Koori Court Division may deal with proceedings for certain offences or hear certain appeals
48New section 4EA inserted
49New section 102 inserted
Division 2—Amendment of the Magistrates' Court Act 1989
50Circumstances in which Koori Court Division may deal with contravention of a sentence imposed by another Division of the Magistrates' Court
51Circumstances in which Koori Court Division may deal with certain offences
52New section 4FA inserted
53Schedule 8 amended
Part 5—Amendment of the Crimes Act 1958
54Failure to disclose sexual offence committed against child under the age of 16 years
55New section 632 inserted
Part 6—Amendment of the Criminal Procedure Act 2009
56Heading to Division 5 of Part 8.2 amended
57Application of this Division
58New section 449 inserted
Part 7—Amendment of Public Health and Wellbeing Act 2008
59Definitions
60Municipal public health and wellbeing plans
Part 8—Repeal of Family Violence Protection Amendment Act 2014
61Repeal of Family Violence Protection Amendment Act 2014
62Consequential amendment—definitions
63Consequential amendment—transitional provisions
Part 9—Amendments relating to the National Domestic Violence Order Scheme Act 2016
Division 1—Amendment of the National Domestic Violence Order Scheme Act 2016
64Properly notified—meaning
Division 2—Consequential amendment of the Coroners Act 2008
65Section 73 amended
Part 10—Repeal of amending Act
66Repeal of amending Act
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Endnotes
1 General information
Family Violence Protection Amendment Act 2017
No. 19 of 2017
[Assented to 16 May 2017]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The main purposes of this Act are—
(a)to amend the Family Violence Protection Act 2008—
(i)to require the court to make a family violence intervention order for a child if the court makes an order for an affected family member; and
(ii)to amend requirements for explaining family violence intervention orders; and
(iii)to provide for a court to order alternative service; and
(iv)to extend the maximum duration of family violence safety notices; and
(v)to make other miscellaneous amendments to that Act; and
(b)to amend the Coroners Act 2008—
(i)to establish the Victorian Systemic Review of Family Violence Deaths unit and to provide for its objectives and functions; and
(ii)to enable the Coroners Court to include information relating to family violence intervention orders or recognised domestic violence orders in its published findings, recommendations and reports; and
(c)to amend the County Court Act 1958 and the Magistrates' Court Act 1989 to give the Koori Court Division of each of those courts jurisdiction in relation to certain family violence matters; and
(d)to amend the Crimes Act 1958 to provide that a prosecution for a certain offence must not be commenced without the consent of the Director of Public Prosecutions; and
(e)to amend the Criminal Procedure
Act 2009 to provide for the use of recorded evidence-in-chief by certain witnesses in certain criminal proceedings; and
(f)to amend the Public Health and Wellbeing Act 2008 in relation to the inclusion of family violence measures in municipal public health and wellbeing plans; and
(g)to repeal the Family Violence Protection Amendment Act 2014; and
(h)to make consequential amendments relating to the National Domestic Violence Order Scheme Act 2016.
2Commencement
(1)This Part, Parts 7 and 8 and section 41 come into operation on the day after the day on which this Act receives the Royal Assent.
(2)Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
(3)If a provision referred to in subsection (2) does not come into operation before 1 September 2018, it comes into operation on that day.
3Principal Act
In this Act, the Family Violence Protection Act 2008 is called the Principal Act.
Part 2—Amendment of the Family Violence Protection Act 2008
Division 1—Family violence intervention orders protecting children
4Meaning of family violence intervention order, final order and interim order
(1)In section 11(2) of the Principal Act, for "section 74 or 76" (wherever occurring) substitute "section 74, 76, 77, 77A or 77B".
(2)In section 11(3)(a) of the Principal Act, after "section 53" (where twice occurring) insert ", 53AA or 53AB".
5New section 52A inserted
After the heading to Division 2 of Part 4 of the Principal Act insert—
"52A Court to consider any children before deciding on interim order
Before deciding whether to make an interim order under section 53, the court must consider whether there are any children who have been subjected to family violence committed by the respondent.".
6Court may make interim order
(1)For section 53(1)(a)(iii) of the Principal Act substitute—
"(iii)to protect an affected family member who is a child who has been subjected to family violence committed by the respondent; or".
(2)Section 53(1A) and (1B) of the Principal Act are repealed.
7New sections 53AA and 53AB inserted
After section 53 of the Principal Act insert—
"53AA Court must make interim order for a child if court makes interim order for affected family member
(1)This section applies if—
(a)the court makes an interim order under section 53(1) in relation to an affected family member; and
(b)the court is satisfied, on the balance of probabilities, that a child has been subjected to family violence committed by the respondent (whether or not that child is also an affected family member).
(2)If the court makes the interim order under section 53(1)(a) or (c), subject to subsection (4), the court must—
(a)if the child's need for protection is substantially the same as that of the affected family member, include the child in the interim order as a protected person; or
(b)otherwise, make a separate interim order for the child as a protected person.
(3)If the court makes the interim order by consent under section 53(1)(b), and that order does not include the child, subject to subsection (4), the court must make a separate interim order for the child as a protected person.
(4)The court is not required to include the child in the interim order or to make a separate interim order to protect the child if the court is satisfied that it is not necessary to do so to protect the child or ensure the safety of the child pending a final decision about the application.
53ABInterim protection of child on court's own initiative—interim order not made for affected family member
If the court does not make an interim order under section 53(1) in relation to an affected family member, the court may, on its own initiative, make an interim order for a child as a protected person if satisfied, on the balance of probabilities, that—
(a)the child has been subjected to family violence committed by the respondent; and
(b)an interim order is necessary to protect the child pending a final decision about the application.".
8New section 73I inserted
After the heading to Division 4 of Part 4 of the Principal Act insert—
"73I Court to consider any children before making final order
(1)Before deciding whether to make a final order under section 74, the court must consider whether there are any children who have been subjected to family violence committed by the respondent.
(2)Before deciding whether to make a final order under section 76, the court must consider whether there are any children who have been subjected to behaviour that would be family violence if the child and the respondent or additional respondent were family members.".
9Power of court to make final order
For the note at the foot of section 74(2) of the Principal Act substitute—
"Notes
1 If the court makes a final order in relation to an affected family member, the court must make a final order to protect a child who has been subjected to family violence—see section 77.
2 If the court does not make a final order in relation to an affected family member, the court may, on its own initiative, make a final order to protect a child who is not an affected family member—see section 77B(1).".
10Section 77 substituted and new sections 77A and 77B inserted
For section 77 of the Principal Act substitute—
"77 Court must make final order for a child if court makes final order for affected family member
(1)This section applies if—
(a)the court makes a final order under section 74 in relation to an affected family member; and
(b)the court is satisfied, on the balance of probabilities, that a child has been subjected to family violence committed by the respondent (whether or not that child is also an affected family member).
(2)Unless the court makes the final order under section 74 by consent, subject to subsection (4), the court must—
(a)if the child's need for protection is substantially the same as that of the affected family member, include the child in the final order as a protected person; or
(b)otherwise, make a separate final order for the child as a protected person.
(3)If the court makes the final order by consent under section 74, and that order does not include the child, subject to subsection (4), the court must make a separate final order for the child as a protected person.
(4)The court is not required under this section to include the child in the final order or to make a separate final order to protect the child if the court is satisfied that it is not necessary to do so to protect the child from family violence committed by the respondent.
77ACourt must make final order for a child if court makes associated final order for affected family member or additional applicant
(1)This section applies if—
(a)the court makes a final order under section 76 in relation to an affected family member or an additional applicant; and
(b)the court is satisfied, on the balance of probabilities, that a child (whether or not the child is also an affected family member or an additional applicant) has been subjected to behaviour that would be family violence if the child and the respondent or additional respondent were family members.
(2)Unless the court makes the final order under section 76 by consent, subject to subsection (4), the court must—
(a)if the child's need for protection is substantially the same as that of the affected family member or additional applicant, include the child in the final order as a protected person; or
(b)otherwise, make a separate final order for the child as a protected person.
(3)If the court makes the final order by consent under section 76, and that order does not include the child, subject to subsection (4), the court must make a separate final order for the child as a protected person.
(4)The court is not required under this section to include the child in the final order or to make a separate final order to protect the child if the court is satisfied that it is not necessary to do so to protect the child from behaviour that would be family violence committed by the respondent or additional respondent, as the case requires.
77BProtection of a child on court's own initiative—final order not made for affected family member or additional applicant
(1)If the court does not make a final order under section 74 in relation to an affected family member, the court may, on its own initiative, make a final order for a child of an affected family member or respondent as a protected person if satisfied, on the balance of probabilities, that the respondent has committed family violence against the child and is likely to continue to do so or do so again.
(2)If the court does not make a final order under section 76 in relation to an affected family member or an additional applicant, the court may, on its own initiative—
(a)make a final order for a child of an affected family member as a protected person if satisfied, on the balance of probabilities, that the additional respondent has subjected the child to behaviour that would be family violence if the child and the additional respondent were family members, and is likely to continue to do so or do so again; or
(b)make a final order for a child of an additional applicant as a protected person if satisfied, on the balance of probabilities, that the respondent has subjected the child to behaviour that would be family violence if the child and the respondent were family members, and is likely to continue to do so or do so again.".
11Consent orders
Section 78(6) of the Principal Act is repealed.
12Power of court to vary or revoke family violence intervention order
For section 100(1)(b) of the Principal Act substitute—
"(b)in the case of an interim order made under section 53AB or a final order made under section 77B, its own initiative.".
13Protection for children who have become family members since order made
In section 104 of the Principal Act, for "the court may, on its own initiative" substitute "the court must".
14Further application for variation etc. of order in respect of child
In section 105(2) of the Principal Act, for "section 53(1)(a)(iii) or 77(2)" substitute "section 53AB or 77B".
15Service of family violence intervention orders
For section 201(c)(iv) of the Principal Act substitute—
"(iv)if the protected person is a child and the order was made by a court under section 53AA, 77 or 77A, or on its own initiative, a parent of the child (other than the respondent) with whom the child normally or regularly lives;".
16Transitional provision inserted
After section 228 of the Principal Act insert—
"228A Family violence intervention orders for protection of children
(1)This Act as amended by Division 1 of Part 2 of the amending Act applies to a proceeding for a family violence intervention order that—
(a)commences on or after the commencement of that Division; or
(b)had been commenced but not determined before the commencement of that Division.
(2)If, before the commencement of Division 1 of Part 2 of the amending Act, an interim order was made under section 53(1)(a)(iii) in relation to a child who was not an affected family member, on and after that commencement, the interim order is taken to have been made under section 53AB.
(3)If, before the commencement of Division 1 of Part 2 of the amending Act, a final order was made under section 77(2) in relation
to a child who was not an affected family member, on and after that commencement, the final order is taken to have been made under section 77B.".
Division 2—Explanations of family violence intervention orders
17Explanation of interim order
(1)Before section 57(1) of the Principal Act insert—
"(1AA)This section applies if the court makes an interim order against a respondent who is an adult.".
(2)In section 57(1) of the Principal Act, for all words and expressions commencing "If a court" and ending "matters—" substitute "If the court makes an interim order, and the respondent or protected person (or both) are before the court, the court must explain to the respondent and protected person (or whichever of them is before the court) the following matters—".
(3)In section 57(1)(d) and (h) of the Principal Act, for "affected family member" substitute "protected person".
(4)For section 57(2) and (2A) of the Principal Act substitute—
"(2)An explanation under subsection (1) must be a clear oral explanation.
(2A)A written notice including the matters referred to in subsection (1), in the form prescribed by the rules, must—
(a)be given to the protected person and respondent (or whichever of them is before the court) with a copy of the interim order; or
(b)otherwise, be given to the protected person or be served on the respondent, with the copy of the interim order.
(2B)The written notice may include any additional information the court considers necessary to explain the interim order.".
(5)In section 57(3) of the Principal Act, for "appropriate registrar" substitute "court".
18New section 57A inserted
After section 57 of the Principal Act insert—
"57A Explanation of interim order—child respondents
(1)This section applies if the court makes an interim order against a respondent who is a child.
(2)If the court makes an interim order, and the respondent or protected person (or both) are before the court, the court must explain to the respondent and protected person (or whichever of them is before the court) the following matters—
(a)the purpose, terms and effect of the interim order;
(b)the consequences and penalties that may follow if the respondent fails to comply with the terms of the interim order;
(c)that the interim order may be enforced against the respondent in another State or a Territory under the National Domestic Violence Order Scheme Act 2016 and corresponding DVO recognition laws;
(d)when the interim order expires and the means by which the interim order may be varied;
(e)for the respondent, that the interim order is a civil order of the court and the protected person cannot give permission to contravene the interim order;
(f)the process for deciding the final order;
(g)how the order interacts with a Family Law Act order or an order under the Children,Youth and Families Act 2005;
(h)if the court has varied, suspended, revoked or revived a Family Law Act order because it is inconsistent with the interim order, the purpose, terms and effect of the variation or suspension;
(i)any relevant family violence services offering legal, emotional or practical support that may be available to the protected person or respondent.
(3)An explanation under subsection (2) must be a clear oral explanation.
(4)A written notice including the matters referred to in subsection (2), in the form prescribed by the rules, must—
(a)be served on the respondent with the copy of the interim order; and
(b)be given to the protected person with the copy of the interim order.
(5)The written notice may include any additional information the court considers necessary to explain the interim order.
(6)A failure by the court to explain an interim order in accordance with this section does not affect the validity of the interim order.".
19Explanation of final order
(1)Before section 96(1) of the Principal Act insert—
"(1AA)This section applies if the court makes a final order against a respondent who is an adult.".
(2)In section 96(1) of the Principal Act—
(a)in paragraph (e), for "order." substitute "order; and";
(b)after paragraph (e) insert—
"(f)how the final order interacts with a Family Law Act order or an order under the Children, Youth and Families Act 2005; and
(g)if the court has varied, suspended, revoked or revived a Family Law Act order because it is inconsistent with the final order, the purpose, terms and effect of the variation or suspension.".
(3)For section 96(3) of the Principal Act substitute—
"(3)A written notice including the matters referred to in subsection (1), in the form prescribed by the rules, must—
(a)be given to the protected person and respondent (or whichever of them is before the court) with a copy of the final order; or
(b)otherwise, be given to the protected person or be served on the respondent, with the copy of the final order.
(3A)The written notice may include any additional information the court considers necessary to explain the interim order.".
(4)For section 96(4) of the Principal Act substitute—
"(4)A failure by the court to explain a final order in accordance with this section does not affect the validity of the final order.".
20New section 96A inserted
After section 96 of the Principal Act insert—
"96A Explanation of final order—child respondents
(1)This section applies if the court makes a final order against a respondent who is a child.
(2)If the court makes a final order and the respondent or protected person (or both) are before the court, the court must explain to the respondent and the protected person (or whichever of them is before the court)—
(a)the purpose, terms and effect of the final order, including the effect of the order on any firearms authority or weapons approval held by the respondent or weapons exemption which applies to the respondent; and
(b)if the family violence intervention order prohibits the respondent living with, spending time with or communicating with a child, that prohibition; and
(c)if the family violence intervention order includes a condition requiring arrangements between the protected person and respondent relating to a child living with, spending time with or communicating with the respondent to be in writing, that condition; and
(d)the consequences and penalties that may follow if the respondent fails to comply with the terms of the final order; and
(e)that the final order may be enforced against the respondent in another Stateor a Territory under the National Domestic Violence Order Scheme Act 2016 and corresponding DVO recognition laws; and
(f)for the respondent, that the final order is a civil order of the court and the protected person cannot give permission to contravene the final order; and
(g)how the final order interacts with a Family Law Act order or an order under the Children, Youth and Families Act 2005; and
(h)if the court has varied, suspended, revoked or revived a Family Law Act order because it is inconsistent with the final order, the purpose, terms and effect of the variation or suspension.
(3)An explanation under subsection (2) must be a clear oral explanation.
(4)A written notice including the matters referred to in subsection (2), in the form prescribed by the rules, must—
(a)be served on the respondent with the copy of the final order; and
(b)be given to the protected person with the copy of the final order.
(5)The written notice may include any additional information the court considers necessary to explain the final order.
(6)A failure by the court to explain a final order in accordance with this section does not affect the validity of the final order.".
21Contravention of family violence intervention order
In section 123(1)(b) of the Principal Act, for "section 57 or 96" substitute "section 57(1) or 96(1)".
22Contravention of order intending to cause harm or fear for safety
In section 123A(2)(b) of the Principal Act, for "section 57 or 96" substitute "section 57(1) or 96(1)".
23Service of family violence intervention orders
In section 201 of the Principal Act—
(a)for paragraph (b) substitute—
"(b)serve a copy of the order on the respondent, unless the respondent has been given an explanation of the order under section 57(1) or 96(1); and";
(b)after paragraph (c)(ii) insert—
"(iia)if the respondent is not required to be served with the order under paragraph (b), the respondent;".
24Transitional provision inserted
After section 229 of the Principal Act insert—
"229A Explanations of orders
(1)This Act as amended by Division 2 of Part 2 of the amending Act applies to a proceeding for a family violence intervention order that—
(a)commences on or after the commencement of that Division; or
(b)had been commenced but not determined before the commencement of that Division.
(2)Section 123 as in force immediately before the commencement of Division 2 of Part 2 of the amending Act continues to apply
to a contravention of a family violence intervention order that was made before that commencement.
(3)Section 123A as in force immediately before the commencement of Division 2 of Part 2 of the amending Act continues to apply
to a contravention of a family violence intervention order that was made before that commencement.".
Division 3—Alternative service
25Address for service
(1)For section 33(1)(b) of the Principal Act substitute—
"(b)advise the respondent that a police officer may, under section 207, seek information about the respondent from public sector organisations—
(i)to enable a police officer to locate the respondent and serve the respondent with a document under this Act; or
(ii)to enable the respondent to be served with a document under an order for alternative service.".
(2)In section 33(2) of the Principal Act—
(a)in paragraph (b), for "respondent." substitute "respondent; or";
(b)after paragraph (b) insert—
"(c)an email address.
Notes
1 The family violence safety notice must be served on the respondent personally. See section 202(2).
2 Other documents may be served by email if the court makes an order for alternative service. See section 202A.".
26Excluded person to provide new address
(1)For section 85(1)(b) of the Principal Act substitute—
"(b)advise the respondent that a police officer may, under section 207, seek information about the respondent from public sector organisations—
(i)to enable a police officer to locate the respondent and serve the respondent with a document under this Act; or
(ii)to enable the respondent to be served with a document under an order for alternative service.".
(2)For the note at the foot of section 85(2) of the Principal Act substitute—
"Note
Documents may be served by email if the court makes an order for alternative service. Documents must otherwise be served on the respondent personally. See section 202A.".
27Rehearing of certain proceeding
In section 122(1)(a)(ii) of the Principal Act, before "substituted service" insert "alternative service or".
28Section 202 substituted and new sections 202A, 202B and 202C inserted
For section 202 of the Principal Act substitute—
"202 Manner of service
(1)Subject to subsection (2), if a document is required under this Act to be served on a person, the document must be served on the person—
(a)by giving a true copy of the document to the person personally; or
(b)if a court makes an order for alternative service under section 202A(1), in accordance with that order.
(2)Each of the following documents must be served on a person personally—
(a)a family violence safety notice;
(b)any document that is required under this Act to be served on a person who is a child.
202ACourt may order alternative service
(1)A court may order that a document be served on a person other than personally by any means specified in the order, if satisfied that—
(a)service other than personal service—
(i)is likely to bring the document to the attention of the person to be served; and
(ii)will not pose an unacceptable risk to the safety of the affected family member, protected person or any other person; and
(b)it is appropriate in all the circumstances to make the order.
(2)The court may make an order for alternative service on the application of a party to the proceeding or on its own initiative.
(3)If the court makes an order for alternative service, the court may order that the document be taken to have been served—
(a)on the happening of any specified event; or
(b)on the expiry of any specified time.
202BPresumption as to effective service by post, electronic communication
(1)Subject to any order under section 202A(3), in the absence of evidence to the contrary, a document is taken to have been served under an order for alternative service—
(a)if the document is required to be served by prepaid post to an address, at the time at which the document would have been delivered in the ordinary course of post; or
(b)if the document is required to be served by registered post to an address, at the time at which the document would have been ordinarily delivered by registered post.
(2)Subsection (1) applies despite anything to the contrary in section 49 of the Interpretation of Legislation Act 1984.
(3)If an order for alternative service requires that a document be served by electronic communication—
(a)the Electronic Transactions (Victoria) Act 2000 extends and applies to service of the document, whether or not the person to be served consented to information being given by means of an electronic communication, and as if the person had consented to service by electronic communication; and
(b)subject to any order under section 202A(3), in the absence of evidence to the contrary, the document is taken to have been served at the time of receipt referred to in section 13A of that Act.
Note
The Electronic Transactions (Victoria) Act 2000 provides that written information may be given to a person by means of electronic communication, with that person's consent. Sections 13A and 13B of that Act provide for time and place of receipt.
202CSubstituted service
(1)If for any reason it is not possible to serve a document in the manner required by section 202, a court may make an order for substituted service so that, instead of service in accordance with section 202, such steps be taken as the court specifies for the purpose of bringing the document to the notice of the person to be served.
(2)An order under subsection (1) may not be made with respect to the service of a family violence safety notice.".
29Disclosure of information by organisations
(1)For section 207(1)(b) of the Principal Act substitute—
"(b)the purpose of the application is to assist a police officer—
(i)to locate the respondent to enable a police officer to personally serve the respondent with a document under this Act; or
(ii)to enable the respondent to be served with a document under an order for alternative service.".
(2)For section 207(3)(b) of the Principal Act substitute—
"(b)must not be used by a police officer for any purpose other than serving the respondent with a document under this Act; and".
30Transitional provision
After section 230A of the Principal Act insert—
"231 Alternative service
The amendments made to this Act by Division 3 of Part 2 of the amending Act apply in relation to a proceeding for a family violence intervention order commenced, or an appeal filed, on or after the commencement of that Division.".
Division 4—Other amendments to the Principal Act
31Definitions
In section 4 of the Principal Act, in the definition of mention date—
(a)after "application" insert "or appeal";
(b)in paragraph (b), after "hearing" insert "or the hearing of an appeal".
32Family violence safety notice taken to be application for family violence intervention order
In section 31(3) of the Principal Act—
(a)for paragraph (a) substitute—
"(a)as soon as practicable if—
(i)the family violence safety notice includes an exclusion condition that excludes the respondent from the respondent's primary place of residence; and
(ii)the police officer who applied for the family violence safety notice believes that the respondent may not have access to temporary accommodation; and";
(b)in paragraph (b), for "5 working days" substitute "14 days".
33New sections 118A and 118B inserted
After section 118 of the Principal Act insert—
"118A Appellant's failure to appear
(1)If an appellant fails to appear at a mention date or at the time listed for the hearing of the appeal, the County Court or the Supreme Court, as the case requires, may—
(a)strike out the appeal; or
(b)adjourn the proceeding on any terms that it considers appropriate.
(2)If the County Court or the Supreme Court strikes out an appeal under subsection (1)(a)—
(a)the registrar of the County Court or the Prothonotary of the Supreme Court must serve a copy of the order striking out the appeal on any person on whom the notice of appeal was required to be served under section 116(3); and
(b)if the whole or part of the relevant decision was stayed under section 117(2)—
(i)the relevant decision or part of the relevant decision is reinstated; and
(ii)any undertaking of bail given by the appellant under section 117(3) is discharged; and
(iii)any counselling order stayed under section 131 is reinstated.
(3)The County Court or the Supreme Court, at any time, may set aside an order striking out an appeal because of the failure of the appellant to appear, if the appellant satisfies the court that the failure to appear was not due to fault or neglect on the part of the appellant.
(4)An application under subsection (3) to set aside an order may be made within a reasonable time after the appellant becoming aware of the order striking out the appeal, by filing notice of the application with the registrar of the County Court or the Prothonotary of the Supreme Court.
(5)The registrar of the County Court or the Prothonotary of the Supreme Court must serve a copy of the notice of the application under subsection (3) on any person on whom the notice of appeal was required to be served under section 116(3).
(6)If the court grants an application under subsection (3), the court must order the reinstatement of the appeal.
118BEffect of order reinstating appeal—stay and bail conditions
(1)If the County Court or the Supreme Court orders the reinstatement of an appeal under section 118A(6) and the operation of the relevant decision or part of the relevant decision had been stayed under section 117(2), the court, on the application of a party to the proceeding, may re-impose the stay of that decision or part of that decision.
(2)If the County Court or the Supreme Court orders the reinstatement of an appeal under section 118A(6), the court may impose bail conditions on the appellant, as if the appellant were an accused person being released from custody on bail—
(a)if re-imposing a stay of the relevant decision or part of the relevant decision, if the court considers it necessary for the protection of a protected person; or
(b)in any case, if the court considers it necessary to require a party to the proceeding to attend court for the appeal.".
34Definitions
In section 126 of the Principal Act insert the following definitions—
"approved counselling means counselling approved under section 133;
Chief Executive Officer means the Chief Executive Officer of Court Services Victoria appointed under section 22 of the Court Services VictoriaAct 2014;".
35Order to assess eligibility for counselling
(1)In section 129(1) of the Principal Act—
(a)for paragraph (a) substitute—
"(a)a counselling assessor to give a report to the relevant court, by a date specified in the order, on whether the respondent is eligible to attend approved counselling to address the violence the subject of the order; and";
(b)in paragraph (b), for "specified person" substitute "counselling assessor".
(2)In section 129(2)(b)(i) of the Principal Act, for "counselling approved by the Secretary under section 133" substitute "approved counselling".
(3)In section 129(3) of the Principal Act, for "specified person" (where twice occurring) substitute "counselling assessor".
(4)After section 129(6) of the Principal Act insert—
"(7)In this section—
counselling assessor means a person employed by Court Services Victoria to prepare reports for the purposes of this section.".
36Order to attend counselling
In section 130 of the Principal Act, for "counselling approved by the Secretary under section 133" (where twice occurring) substitute "approved counselling".
37Section 133 substituted
For section 133 of the Principal Act substitute—
"133 Approval of counselling
(1)The Chief Executive Officer may approve, in writing, counselling that the Chief Executive Officer considers appropriate to address family violence to be provided by particular persons or bodies for the purposes of orders under section 130.
(2)The Chief Executive Officer must make available to a relevant court—
(a)a list of approved counselling; and
(b)the contact details of the particular persons who or bodies which provide the counselling.".
38Variation or revocation of counselling orders
In section 137(1)(a)(i) of the Principal Act, for "counselling approved by the Secretary under section 133" substitute "approved counselling".
39Section 144 substituted
For section 144 of the Principal Act substitute—
"144 Delegation
The Chief Executive Officer, by instrument, may delegate to another member of the staff of Court Services Victoria any power of the Chief Executive Officer under this Part other than this power of delegation.".
40New Division 11 of Part 14 inserted
At the end of Part 14 of the Principal Act insert—
"Division 11—Family Violence Protection Amendment Act 2017
228Definitions
In this Division—
amending Act means the Family Violence Protection Amendment Act 2017.
229Appeals
Sections 118A and 118B apply to an appeal filed on or after the commencement of section 33 of the amending Act.
230Approval of counselling
On and after the commencement of section 37 of the amending Act, any counselling that, immediately before that commencement, was approved by the Secretary under section 133(2), is taken to be approved counselling within the meaning of section 126 as if it had been approved by the Chief Executive Officer.
230AReview of amendments to first mention date for family violence safety notices
(1)The Minister must cause an independent review to be conducted into the operation of section 31(3) as amended by section 32 of the amending Act for the period commencing on the day on which section 32 of the amending Act comes into operation and ending on the day that is 2 years later.
(2)The Minister must cause a copy of the review to be laid before each House of the Parliament within 6 months after the end of the 2 year period.
(3)The review must give particular consideration to any unintended or adverse effects of the amendments made to section 31(3) by section 32 of the amending Act, including any increased risk to affected family members.".
41Statute law revision
In section 4 of the Principal Act, in the definition of Secretary, for "Department of Justice" substitute "Department of Justice and Regulation".
Part 3—Amendment of the Coroners Act 2008
42Definitions
(1)In section 3(1) of the Coroners Act 2008, in the definition of tissue, for "Act 1982." substitute "Act 1982;".
(2)In section 3(1) of the Coroners Act 2008 insert the following definition—
"VSRFVD means the Victorian Systemic Review of Family Violence Deaths unit established under section 102U.".
43New Division 1C inserted in Part 8
After section 102S of the Coroners Act 2008 insert—
"Division 1C—Victorian Systemic Review of Family Violence Deaths unit
102TDefinitions
In this Division—
family violence has the same meaning as in the Family Violence Protection Act 2008.
102UEstablishment of the VSRFVD
The Victorian Systemic Review of Family Violence Deaths unit is established.
102VMembership of the VSRFVD
The VSRFVD consists of—
(a)the State Coroner; and
(b)any other persons appointed by the State Coroner.
102WFunctions of the VSRFVD
The VSRFVD has the following functions—
(a)to examine deaths suspected to have resulted from family violence;
(b)to identify risks and contributory factors associated with deaths resulting from family violence;
(c)to identify trends and patterns in deaths resulting from family violence;
(d)to identify trends and patterns in responses to family violence;
(e)to provide coroners with information obtained through the exercise of the VSRFVD's functions described in paragraphs (a), (b), (c) and (d).".
44Publication of findings and reports
After section 73(1B) of the Coroners Act 2008 insert—
"(2)Section 166 of the Family Violence Protection Act 2008 does not apply to the publication under subsection (1) or (1A) of any relevant information if a coroner reasonably considers it is in the public interest to allow the publication of that information.
(3)Section 534 of the Children, Youth and Families Act 2005 does not apply to the publication under subsection (1) or (1A) of any relevant information if—
(a)a coroner reasonably considers that it is in the public interest to allow the publication of the information; and
(b)no person likely to be identified by the publication of the information is a child.
(4)In this section—
relevant information means—
(a)a locality or any particulars or picture likely to lead to the identification of the particular venue of the court for proceedings under the Family Violence Protection Act 2008; or
(b)any particulars or picture likely to lead to the identification of any person—
(i)who is a party to, or a witness in, proceedings under the Family Violence Protection Act 2008; or
(ii)who is the subject of an order under the FamilyViolence ProtectionAct 2008.".
45Annual report
After section 102(1)(a) of the Coroners Act 2008 insert—
"(ab)a review of the operation of the VSRFVD during that period; and".
Part 4—Amendment of the County Court Act 1958 and Magistrates' Court Act 1989
Division 1—Amendment of the County Court Act 1958
46Circumstances in which Koori Court Division may deal with contravention of a sentence imposed by it or by another Division of the County Court
(1)In section 4DA(b)(i) of the County Court Act 1958, for "or" substitute "and".
(2)Section 4DA(b)(ii) of the County Court Act 1958 is repealed.
47Circumstances in which Koori Court Division may deal with proceedings for certain offences or hear certain appeals
(1)In section 4E(b)(i) of the County Court Act 1958, for "or" substitute "and".
(2)Section 4E(b)(ii) of the County Court Act 1958 is repealed.
48New section 4EA inserted
After section 4E of the County Court Act 1958 insert—
"4EA Certain matters may be dealt with by Koori Court Division only in certain venues
(1)The Chief Judge may, by notice in the Government Gazette, specify a venue of the court as a venue at which the Koori Court Division may exercise—
(a)the jurisdiction conferred on the Koori Court Division by section 4B(b) and (ba) in relation to the contravention or variation of a sentence imposed in relation to—
(i)a contravention of a family violence intervention order or a family violence safety notice under the Family Violence Protection Act 2008; or
(ii)an offence arising out of the same conduct as that from which the contravention arose; and
(b)the jurisdiction conferred on the Koori Court Division by section 4B(b) and (ba) in relation to an offence constituted by a contravention of a sentence referred to in paragraph (a); and
(c)the jurisdiction conferred on the Koori Court Division by section 4C or 4D in relation to a matter referred to in paragraph (a)(i) or (ii).
(2)The Koori Court Division must not exercise the jurisdiction referred to in subsection (1) except when sitting at a venue specified under that subsection.".
49New section 102 inserted
At the end of Part VIII of the County Court Act 1958 insert—
"102 Transitional provisional—Family Violence Protection Amendment Act 2017
(1)The amendment made to section 4DA of this Act by section 46 of the Family Violence Protection Amendment Act 2017 applies, on and after the commencement of section 46 of that Act, to the contravention or variation of a sentence (including any offence constituted by a contravention of a sentence)—
(a)irrespective of when the offence to which that sentence relates was committed; and
(b)in the case of a contravention, irrespective of when the contravention occurred.
(2)The amendment made to section 4E of this Act by section 47 of the Family Violence Protection Amendment Act 2017 applies to the following matters on and after the commencement of section 47 of that Act—
(a)a proceeding for an offence irrespective of when that offence was committed;
(b)an appeal referred to in section 4D of this Act irrespective of when the sentence to which that appeal relates was imposed.".
Division 2—Amendment of the Magistrates' Court Act 1989
50Circumstances in which Koori Court Division may deal with contravention of a sentence imposed by another Division of the Magistrates' Court
(1)In section 4EA(b)(i) of the Magistrates' Court Act 1989, for "or" substitute "and".
(2)Section 4EA(b)(ii) and (iii) of the Magistrates'Court Act 1989 are repealed.
51Circumstances in which Koori Court Division may deal with certain offences
(1)In section 4F(1)(b)(i) of the Magistrates' Court Act 1989, for "or" substitute "and".
(2)Section 4F(1)(b)(ii) and (iii) of the Magistrates'Court Act 1989 are repealed.
52New section 4FA inserted
After section 4F of the Magistrates' Court Act 1989 insert—
"4FA Certain matters may be dealt with by Koori Court Division only in certain venues
(1)The Chief Magistrate may, by notice in the Government Gazette, specify a venue of the court as a venue at which the Koori Court Division may exercise—
(a)the jurisdiction conferred on the Koori Court Division by section 4E(a) in relation to—
(i)a contravention of a family violence intervention order or an offence arising out of the same conduct as that from which the contravention arose; or
(ii)a contravention of a personal safety intervention order under the Personal Safety Intervention Orders Act 2010 or an offence arising out of the same conduct as that out of which the contravention arose; and
(b)the jurisdiction conferred on the Koori Court Division by section 4E(b) and (ba) in relation to the contravention or variation of a sentence imposed in relation to a matter referred to in paragraph (a)(i) or (ii); and
(c)the jurisdiction conferred on the Koori Court Division by section 4E(b) and (ba) in relation to an offence constituted by a contravention of a sentence referred to in paragraph (b).
(2)The Koori Court Division must not exercise the jurisdiction referred to in subsection (1) except when sitting at a venue specified under that subsection.".
53Schedule 8 amended
At the end of Schedule 8 to the Magistrates' Court Act 1989 insert—
"55 Transitional—Family Violence Protection Amendment Act 2017
(1)The amendment made to section 4EA of this Act by section 50 of the Family Violence Protection Amendment Act 2017 applies, on and after the commencement of section 50 of that Act, to the contravention or variation of a sentence (including any offence constituted by a contravention of a sentence)—
(a)irrespective of when the offence to which that sentence relates was committed; and
(b)in the case of a contravention, irrespective of when the contravention occurred.
(2)The amendment made to section 4F of this Act by section 51 of the Family Violence Protection Amendment Act 2017 applies, on and after the commencement of section 51 of that Act, to a proceeding for an offence (other than an offence constituted by a contravention of a sentence imposed by it) irrespective of when that offence was committed.".
Part 5—Amendment of the Crimes Act 1958
54Failure to disclose sexual offence committed against child under the age of 16 years
After section 327(7) of the Crimes Act 1958 insert—
"(8)A prosecution for an offence under subsection (2) must not be commenced without the consent of the Director of Public Prosecutions.
(9)In determining whether to consent to a prosecution for an offence under subsection (2), the Director of Public Prosecutions must consider whether the alleged offender has been subjected to family violence (within the meaning of the Family Violence Protection Act 2008) that is relevant to the circumstances in which the offence is alleged to have been committed.".
55New section 632 inserted
At the end of Part 7 of the Crimes Act 1958 insert—
"632 Transitional provision—Family Violence Protection Amendment Act 2017
Section 327 as amended by section 54 of the Family Violence Protection Amendment Act 2017 applies to a prosecution for an offence under section 327(2) that is commenced on or after the day on which section 54 of that Act comes into operation irrespective of when that offence is alleged to have been committed.".
Part 6—Amendment of the Criminal Procedure Act 2009
56Heading to Division 5 of Part 8.2 amended
In the heading to Division 5 of Part 8.2 of the Criminal Procedure Act 2009, for "sexual offence and assault" substitute "sexual offence, assault and family violence".
57Application of this Division
After section 366(1)(a) of the Criminal Procedure Act 2009 insert—
"(ab)an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008; or".
58New section 449 inserted
At the end of Chapter 10 of the Criminal Procedure Act 2009 insert—
"449 Transitional provision—Family Violence Protection Amendment Act 2017
Part 8.2 as amended by Part 6 of the Family Violence Protection Amendment Act 2017 applies to a criminal proceeding that commences on or after the day on which Part 6 of that Act comes into operation.".
Part 7—Amendment of Public Health and Wellbeing Act 2008
59Definitions
In section 3(1) of the Public Health and Wellbeing Act 2008 insert the following definition—
"family violence has the same meaning as in section 4 of the Family Violence Protection Act 2008;".
60Municipal public health and wellbeing plans
(1)After section 26(2)(b) of the Public Health and Wellbeing Act 2008 insert—
"(ba)specify measures to prevent family violence and respond to the needs of victims of family violence in the local community;".
(2)After section 26(4) of the Public Health and Wellbeing Act 2008 insert—
"(4A)An annual review must include a review of the measures referred to in subsection (2)(ba).".
(3)After section 26(6) of the Public Health and Wellbeing Act 2008 insert—
"(6A)A Council must report to the Secretary on the measures referred to in subsection (2)(ba) at the intervals specified by the Secretary by notice in writing.".
Part 8—Repeal of Family Violence Protection Amendment Act 2014
61Repeal of Family Violence Protection Amendment Act 2014
The Family Violence Protection Amendment Act 2014 is repealed.
Note
The repeal of the Family Violence Protection Amendment Act 2014 does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
62Consequential amendment—definitions
In section 4 of the Principal Act, the definition of finalisation condition is repealed.
63Consequential amendment—transitional provisions
Section 226(1) of the Principal Act is repealed.
Part 9—Amendments relating to the National Domestic Violence Order Scheme Act 2016
Division 1—Amendment of the National Domestic Violence Order Scheme Act 2016
64Properly notified—meaning
In section 16(1)(b)(i) and (3)(a) of the National Domestic Violence Order Scheme Act 2016, for "section 57 or 96" substitute "section 57(1) or 96(1)".
Division 2—Consequential amendment of the Coroners Act 2008
65Section 73 amended
(1)After section 73(3) of the Coroners Act 2008 insert—
"(3A)This section applies in relation to publication of any relevant information relating to proceedings for the variation, extension or revocation of a non-local DVO that is a recognised DVO or to an application under Part 7 of the National Domestic Violence Order Scheme Act2016 relating to a non‑local DVO subject to—
(a)any law that applies to publication about the non-local DVO in the issuing jurisdiction; and
(b)any order relating to publication of the non-local DVO made by a court of the issuing jurisdiction.".
(2)For section 73(4) of the Coroners Act 2008 substitute—
"(4)In this section—
issuing jurisdiction has the same meaning as in the National Domestic Violence Order Scheme Act 2016;
non-local DVO has the same meaning as in the National Domestic Violence Order Scheme Act 2016;
recognised DVO has the same meaning as in the National Domestic Violence Order Scheme Act 2016;
relevant information means—
(a)a locality or any particulars or picture likely to lead to the identification of the particular venue of the court for proceedings under the Family Violence Protection Act 2008 or the National Domestic Violence Order Scheme Act 2016; or
(b)any particulars or picture likely to lead to the identification of any person—
(i)who is a party to, or a witness in, a proceeding under the Family Violence Protection Act 2008; or
(ii)who is the subject of an order under the Family Violence Protection Act 2008; or
(iii)who is a party to, or a witness in, a proceeding for the variation, extension or revocation of a non-local DVO that is a recognised DVO or who is the subject of that non-local DVO; or
(iv)who is the applicant for a declaration under Part 7 of the National Domestic Violence Order Scheme Act 2016 or who is the subject of the non-local DVO in relation to which the application is made.".
Part 10—Repeal of amending Act
66Repeal of amending Act
This Act is repealed on 1 September 2019.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 8 March 2017
Legislative Council: 2 May 2017
The long title for the Bill for this Act was "A Bill for an Act to amend the Family Violence Protection Act 2008, the Coroners Act 2008, the County Court Act 1958, the Crimes Act 1958, the Criminal Procedure Act 2009, the Magistrates' Court Act 1989 and the Public Health and Wellbeing Act 2008, to repeal the Family Violence Protection Amendment Act 2014, to make consequential amendments to the NationalDomestic Violence Order Scheme Act 2016 and for other purposes."
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