Untitled document
Magistrates' Court (Family Violence) Act 2004
Act No. 77/2004
table of provisions
Section Page
Part 1—Preliminary
1.Purposes
2.Commencement
Part 2—Magistrates' Court Act 1989
3.Definitions
4.New sections 4H to 4L inserted
4H.Establishment of Family Violence Court Division
4I.Jurisdiction of Family Violence Court Division
4J.Adjournment to seek legal advice
4K.Alternative arrangements for giving evidence
4L.Restriction on children being called as witnesses or present in court
5.New section 145 inserted
145.Rules of court—Family Violence Court Division
Part 3—Crimes (Family Violence) Act 1987
6.Purpose
7.Definitions
8.Jurisdiction of Children's Court
9.Intervention orders
10.New section 4A inserted
4A.Additional protection of children
11.Restrictions in order
12.Police complainants and police prosecutors
13.Interim intervention orders made in the absence of defendant
14.New Part 2A inserted
PART 2A—COUNSELLING Orders
Division 1—Object and application of Part
8A.Object of Part
8B.Application of Part
Division 2—Orders to assess eligibility for and to attend counselling
8C.Order to assess eligibility for counselling
8D.Order to attend counselling
8E.Effect of appeal against intervention order
Division 3—Procedures relating to counselling orders
8F.Notice of hearings
8G.Approval of persons and of counselling
8H.Person giving report may be required to attend hearing
8I.Disputed report
8J.Explanation of counselling orders
8K.Variation or revocation of counselling orders
8L.Service of counselling orders, eligibility report etc.
8M.Substituted service
Division 4—Other matters
8N.Certificate of defendant's non-attendance
8O.Confidentiality of eligibility interview and report
8P.Confidentiality of counselling
8Q.Limited use of information by court
8R.Authorisation to collect health information
8S.Delegation
15.Heading to Part 3
16.Procedure in third party complaints
17.Rules of evidence not to apply in certain cases
18.Consent orders
19.Repeal of section 14A
20.Explanation of orders
21.Section 16 substituted
16.Variation, revocation or extension of orders
22.New section 16A inserted
16A.Additional protection of children in varying or
revoking orders
23.Service of intervention orders
24.Repeal of section 18
25.Appeal by defendant
26.Appeal by complainant
27.New sections 21A to 21D inserted
21A.Affidavit evidence
21B.Restriction on evidence by and presence of children
21C.Costs
21D.Concurrent criminal proceedings
28.Breach of an order
29.Restriction on reports of proceedings involving children
30.Intervention order prevails over order under Children and Young Persons Act 1989
31.Relationship with Family Court contact orders
32.Validation of certain orders
33.Transitional
Part 4—Repeal of Counselling Order Provisions
Division 1—Magistrates' Court Act 1989
34.Jurisdiction of Family Violence Court Division
Division 2—Crimes (Family Violence) Act 1987
35.Purpose
36.Definition
37.Intervention orders
38.Part 2A repealed
39.Appeal by defendant
40.Concurrent criminal proceedings
41.New section 28 inserted
28.Transitional: repeal of amendments made by the Magistrates' Court (Family Violence) Act 2004
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Endnotes
Magistrates' Court (Family Violence) Act 2004
[Assented to 9 November 2004]
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
1.Purposes
(1)The main purposes of this Act are—
(a)to simplify access to the justice system for persons affected by family violence and promote the safety of those persons; and
(b)to increase the accountability of persons who have used violence against family members and encourage them to change their behaviour; and
(c)to increase the protection of children exposed to family violence.
(2)To achieve those purposes, this Act—
(a)amends the Magistrates' Court Act 1989 to establish the Family Violence Court Division of the Magistrates' Court; and
(b)amends the Crimes (Family Violence) Act 1987 to provide for counselling orders and to increase court powers relating to intervention orders concerning children; and
(c)makes other amendments to the Crimes (Family Violence) Act 1987.
2.Commencement
(1)This Part comes into operation on the day after the day on which this Act receives the Royal Assent.
(2)Part 4 comes into operation on 30 October 2007.
(3)Subject to sub-section (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
(4)If a provision of this Act does not come into operation before 1 April 2005, it comes into operation on that day.
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Part 2—Magistrates' Court Act 1989
3.Definitions
(1)In section 3(1) of the Magistrates' Court Act 1989 insert the following definitions—
' "family violence" by a person means the person has—
(a)assaulted (within the meaning given by section 31 of the Crimes Act 1958) a family member or caused damage to a family member's property; or
(b)threatened to assault (within the meaning given by section 31 of the Crimes Act 1958) a family member or cause damage to a family member's property; or
(c)harassed or molested a family member or behaved in an offensive manner towards a family member;
"party" to a proceeding for—
(a)an intervention order or interim intervention order under the Crimes (Family Violence) Act 1987; or
(b)an order under section 16 of that Act; or
(c)the breach of an order referred to in paragraph (a) or (b)—
includes, in sections 4J and 4K, an aggrieved family member (within the meaning of the Crimes (Family Violence) Act 1987);'.
(2)In section 3(1) of the Magistrates' Court Act 1989—
(a)in paragraph (a) of the definition of "proper venue", before "in relation" insert "subject to paragraph (c),";
(b)in paragraph (b) of the definition of "proper venue", before "in relation" insert "subject to paragraph (c),";
(c)after paragraph (b)(ii) of the definition of "proper venue" insert—
"and
(iii)in the case of a proceeding for an intervention order (other than an interim intervention order) under the Crimes (Family Violence) Act 1987, the place referred to in sub‑paragraph (i) or (ii) or the place of permanent or temporary residence of the aggrieved family member (within the meaning of that Act); and
(c)in relation to a proceeding in respect of which the Family Violence Court Division has jurisdiction (other than an interim intervention order under the Crimes (Family Violence) Act 1987), means—
(i)a venue of the Court at which the Family Violence Court Division may sit and act but only if at least one of the following places is within a postcode area specified, in relation to that venue, by the Minister by notice published in the Government Gazette—
(A)the place where the family violence the subject of the proceeding is alleged to have been committed;
(B)the place of residence of the defendant;
(C)the place of permanent or temporary residence of the person against whom the family violence is alleged to have been committed; or
(ii)if sub-paragraph (i) does not apply, the mention court or civil registry court determined under paragraph (a) or (b) (as the case may be); and
(d)in relation to a proceeding for an interim intervention order under the Crimes (Family Violence) Act 1987 means any civil registry court;".
4.New sections 4H to 4L inserted
After section 4G of the Magistrates' Court Act 1989 insert—
'4H.Establishment of Family Violence Court Division
(1)The Court has a Family Violence Court Division.
(2)The Family Violence Court Division has such of the powers of the Court as are necessary to enable it to exercise its jurisdiction.
(3)Despite section 4(3), the Family Violence Court Division shall only be constituted by a magistrate who has been assigned to that Division by the Chief Magistrate by notice published in the Government Gazette.
(4)In assigning a magistrate, the Chief Magistrate must have regard to the magistrate's relevant knowledge and experience in dealing with matters relating to family violence.
(5)Despite anything to the contrary in this Act, the Family Violence Court Division may only sit and act at the following venues of the Court—
(a)Ballarat;
(b)Heidelberg;
(c)such other venue of the Court as the regulations prescribe for the purposes of this sub-section.
(6)Subject to this Act, the regulations and rules, the Family Violence Court Division may regulate its own procedure.
4I.Jurisdiction of Family Violence Court Division
(1)The Family Violence Court Division has jurisdiction to deal with any of the following matters if the matter is within the jurisdiction of the Magistrates' Court and arises from or includes allegations of family violence by a person—
(a)proceedings for or with respect to the following orders under the Crimes (Family Violence) Act 1987—
(i)an intervention order, interim intervention order or an order under section 16 of that Act; or
(ii)a counselling order or an order under section 8K of that Act;
(b)civil proceedings for or with respect to damages for personal injury;
(c)matters arising under—
(i)the Family Law Act 1975 of the Commonwealth; or
(ii)the Child Support (Assessment) Act 1989 of the Commonwealth;
(d)proceedings for or with respect to the trial of a person for a summary offence or an indictable offence that may be heard and determined summarily;
(e)proceedings for or with respect to the committal for trial of a person for an indictable offence;
(f)proceedings for an order under Division 1 or 2 of Part 4 of the Sentencing Act 1991 that arise from an offence referred to in paragraph (d).
Note:Division 1 of Part 4 of the Sentencing Act 1991 deals with restitution. Division 2 of Part 4 of the Sentencing Act 1991 deals with compensation.
(2)Despite anything to the contrary in the Victims of Crime Assistance Act 1996, if the act of violence to which an application under that Act relates is family violence by a person—
(a)the Family Violence Court Division has jurisdiction to deal with the application; and
(b)in dealing with the application, the Family Violence Court Division has the same functions, powers and duties as the Victims of Crime Assistance Tribunal; and
(c)for the purposes of the application and any subsequent review of a decision relating to the application, the Family Violence Court Division is taken to constitute the Victims of Crime Assistance Tribunal.
(3)The Family Violence Court Division also has—
(a)jurisdiction to deal with a breach of an order referred to in section 4I(1)(a), including any offence constituted by such a breach; and
(b)any other jurisdiction given to it by or under this or any other Act.
(4)Subject to and in accordance with the rules, a proceeding may be transferred to the Family Violence Court Division, whether sitting at the same or a different venue, but only if—
(a)the place where the family violence the subject of the proceeding is alleged to have been committed; or
(b)the place of residence of the defendant; or
(c)the place of permanent or temporary residence of the person against whom the family violence is alleged to have been committed—
is within a postcode area specified, in relation to the venue of the Court at which the Family Violence Court Division is sitting, by the Minister by notice published in the Government Gazette.
(5)Subject to and in accordance with the rules, the Family Violence Court Division may transfer a proceeding (including a proceeding transferred to it under sub-section (4)) to the Court, sitting other than as the Family Violence Court Division, at the same or a different venue.
(6)Despite anything to the contrary in this Act, if a proceeding is transferred from one venue of the Court to another, the transferee venue is the proper venue of the Court for the purposes of this Act.
4J.Adjournment to seek legal advice
(1)The Family Violence Court Division may, on its own initiative or on the application of a party to a proceeding, exercise its power under section 128 to adjourn proceedings to give one or more of the parties a reasonable opportunity to obtain legal advice.
(2)The Family Violence Court Division may resume the proceedings if it is satisfied that the party or parties have had a reasonable opportunity to obtain legal advice whether or not that advice has been obtained.
Note:For "party" to a proceeding, see section 3(1).
4K.Alternative arrangements for giving evidence
(1)The Family Violence Court Division may direct that any of the following alternative arrangements be made for the giving of evidence by a witness in a proceeding—
(a)permitting the evidence to be given from a place other than the courtroom by means of closed circuit television or other facilities that enable communication between that place and the courtroom;
(b)using screens to remove the defendant from the witness's direct line of vision;
(c)permitting a person to be beside the witness while he or she is giving evidence for the purpose of providing emotional support to him or her;
(d)requiring legal practitioners to be seated while examining or cross‑examining the witness;
(e)permitting only persons specified by the Family Violence Court Division to be present while the witness is giving evidence;
(f)any other alternative arrangements the Family Violence Court Division considers appropriate.
(2)If the witness is 18 years of age or over, the Family Violence Court Division may make a direction under sub-section (1) on its own initiative or on the application of a party to the proceeding.
(3)If the witness is under 18 years of age, the Family Violence Court Division must make a direction under sub-section (1) unless it considers it is not appropriate to do so having regard to—
(a)the wishes expressed by the witness; and
(b)the age and maturity of the witness; and
(c)any other matters that the Family Violence Court Division considers relevant.
(4)The Family Violence Court Division may hear an application under sub‑section (2) or ascertain the matters in sub-section (3) in camera and, except as otherwise directed by the Family Violence Court Division, persons who are not parties to the proceeding or their legal practitioners or representatives are not permitted to be present while the hearing takes place or the matters are being ascertained.
(5)Any place outside the courtroom where a witness is permitted to give evidence under this section is to be taken to be part of the courtroom while the witness is there for the purpose of giving evidence.
(6)The Family Violence Court Division may at any time in the course of the proceeding vary or revoke a direction made under sub-section (1) on its own initiative or on the application of a party to the proceeding.
Note:For "party" to a proceeding, see section 3(1).
4L.Restriction on children being called as witnesses or present in court
(1)A child must not be present during, or called as a witness in, proceedings in the Family Violence Court Division, other than proceedings for an intervention order or interim intervention order, if—
(a)the child is a family member of a party to the proceedings; or
(b)the proceedings arise from or include allegations of family violence and the child is a family member of the alleged victim of that family violence.
(2)However, sub-section (1) does not apply if—
(a)the child is the defendant in the proceedings; or
(b)the Family Violence Court Division makes an order allowing the child to be present or called as a witness (as the case may be).
Note:Section 21B of the Crimes (Family Violence) Act 1987 restricts when a child can be present during, or called as a witness in, proceedings for an intervention order or interim intervention.'.
5.New section 145 inserted
After section 144 of the Magistrates' Court Act 1989 insert—
'145.Rules of court—Family Violence Court Division
(1)The Chief Magistrate together with 2 or more Deputy Chief Magistrates may jointly make rules of court for or with respect to—
(a)any matter relating to the practice and procedure of the Family Violence Court Division of the Court; and
(b)the transfer of proceedings to and from the Family Violence Court Division of the Court.
(2)Sub-sections (3) to (5) of section 142 apply to a power conferred by sub-section (1) and to rules made under that sub-section as if—
(a)any reference in those sub-sections to "sub-section (1)" were a reference to sub-section (1) of this section; and
(b)sub-section (4)(c) did not contain the word "committal".'.
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Part 3—Crimes (Family Violence) Act 1987
6.Purpose
In section 1 of the Crimes (Family Violence) Act 1987, after "orders" insert "and counselling orders".
7.Definitions
In section 3(1) of the Crimes (Family Violence) Act 1987—
(a)for the definition of "aggrieved family member" substitute the following definition—
' "aggrieved family member" means the family member whose person or property is the subject of the complaint for, or is protected by, an intervention order or interim intervention order;';
(b)insert the following definitions—
' "counselling order" means an order under section 8C or 8D;
"Family Violence Court Division" means the Family Violence Court Division of the Magistrates' Court;
"party" to a proceeding under this Act includes, to avoid doubt, the defendant in the proceeding or the defendant the subject of an order made in the proceeding;
"Secretary" means the Secretary to the Department of Justice;';
(c)the definition of "order" is repealed.
8.Jurisdiction of Children's Court
After section 3A(4) of the Crimes (Family Violence) Act 1987 insert—
'(5)In this section, "Magistrates' Court" includes the Family Violence Court Division.'.
9.Intervention orders
At the foot of section 4 of the Crimes (Family Violence) Act 1987 insert—
"Note:Part 3 sets out procedures relating to intervention orders.".
10.New section 4A inserted
After section 4 of the Crimes (Family Violence) Act 1987 insert—
"4A.Additional protection of children
(1)In addition to the grounds in section 4(1) on which the Court may make an intervention order, the Court may make an intervention order under that section in respect of a child as an aggrieved family member if the Court is satisfied on the balance of probabilities that—
(a)the child has heard or witnessed, and is likely again to hear or witness, violence by a person as described in section 4(1); and
(b)the child is a family member of that person or of the aggrieved family member whose person or property was the subject of the violence—
whether or not a complaint for an intervention order has also been made by or on behalf of the aggrieved family member whose person or property was the subject of the violence.
(2)Before making an intervention order under section 4 (whether on the grounds in section 4(1) or in sub-section (1) of this section), the Court must consider whether there are—
(a)any children; or
(b)in the case of an intervention order referred to in sub-section (1) of this section, any other children—
who are family members of the defendant or of the aggrieved family member who have been subjected to, or have heard or witnessed, violence by the defendant as described in section 4(1).
(3)If the Court is satisfied on the balance of probabilities that a child who is a family member of the defendant or of the aggrieved family member has been subjected to, or has heard or witnessed, violence by the defendant as described in section 4(1) and is likely again to be subjected to or to hear or witness such violence, the Court may (on its own initiative)—
(a)if the child's need for protection is substantially the same as that of the aggrieved family member, include the child as an aggrieved family member in making the order; or
(b)in any other case, make a separate intervention order under section 4 in respect of the child as an aggrieved family member.
(4)If the Court makes an intervention order in respect of a child as an aggrieved family member (including an intervention order referred to in sub-section (1) or (3) of this section), the Court must determine whether there are any orders in force under the Family Law Act 1975 of the Commonwealth in respect of the residence of the child or the defendant's contact with the child.
Note:If there is such an order in force, section 68T of that Act may allow the court to vary, discharge or suspend that order.
(5)This section has effect despite anything to the contrary in section 4(1).".
11.Restrictions in order
(1)In section 5(1) of the Crimes (Family Violence) Act 1987—
(a)for "section 4" substitute "sections 4 and 4A";
(b)for "an order" substitute "an intervention order".
(2)Section 5(1)(g) of the Crimes (Family Violence) Act 1987 is repealed.
(3)In section 5(2) of the Crimes (Family Violence) Act 1987, for "an order" substitute "an intervention order".
12.Police complainants and police prosecutors
In section 7A(1) of the Crimes (Family Violence) Act 1987, for "an order" substitute "an intervention order".
13.Interim intervention orders made in the absence of defendant
For section 8(2) of the Crimes (Family Violence) Act 1987 substitute—
"(2)Except in the case of a complaint made by telephone or facsimile machine, the court must not make an interim intervention order unless the complaint is supported by—
(a)oral evidence; or
(b)except in the case of proceedings arising under section 21A of the Crimes Act 1958, evidence by affidavit.".
14.New Part 2A inserted
After Part 2 of the Crimes (Family Violence) Act 1987 insert—
"PART 2A—COUNSELLING Orders
Division 1—Object and application of Part
8A.Object of Part
The object of this Part is—
(a)to provide for orders to assess the eligibility of certain defendants for counselling; and
(b)if appropriate, to require a defendant to attend counselling the purpose of which is—
(i)to increase the defendant's accountability for the violence he or she has used against a family member; and
(ii)to encourage the defendant to change his or her behaviour.
8B.Application of Part
This Part only applies to a defendant in respect of whom the Family Violence Court Division makes an intervention order if—
(a)the defendant is 17 years of age or over; and
(b)the defendant's place of residence when the family violence the subject of the intervention order was committed is within a postcode area specified, in relation to the venue of the Family Violence Court Division at which the intervention order is made, by the Minister by notice published in the Government Gazette for the purposes of this Part; and
(c)the intervention order is made after the commencement of this Part.
Division 2—Orders to assess eligibility for and to attend counselling
8C.Order to assess eligibility for counselling
(1)If the Family Violence Court Division makes an intervention order in respect of a defendant, it must make an order requiring—
(a)a specified person who is approved by the Secretary under section 8G to give a report to the Family Violence Court Division, by a date specified in the order, on whether the defendant is eligible to attend counselling approved by the Secretary under section 8G to address the violence described in section 4(1); and
(b)the defendant to attend an interview with the specified person for the purposes of preparing that report.
(2)However, the Family Violence Court Division is not required to make the order if—
(a)there is already in force an order under this section or section 8D in respect of the defendant; or
(b)the Family Violence Court Division is satisfied that—
(i)there is no counselling approved by the Secretary under section 8G that it is reasonably practicable for the defendant to attend; or
(ii)in all the circumstances of the case, it is not appropriate to make the order for any other reason.
(3)The report must assess the defendant as eligible to attend counselling unless the specified person considers that the defendant does not have the ability or capacity to participate in counselling because of one or more of the following—
(a)the defendant's character, personal history or language skills;
(b)any disabilities of the defendant;
(c)any severe psychiatric or psychological conditions of the defendant;
(d)any alcohol or other drug problems of the defendant;
(e)any other matter the specified person considers relevant.
(4)An order under sub-section (1) must specify a time and place at which the interview is to be conducted but the Family Violence Court Division may vary that time and place by the registrar giving reasonable notice (in writing) to the defendant.
(5)A defendant who, without reasonable excuse, contravenes an order under this section by failing to attend the interview is guilty of an offence and is liable to a fine not exceeding 10 penalty units.
(6)The defendant is taken to have contravened the order by failing to attend the interview if he or she fails to attend at the time and place specified in the order or of which he or she is given notice in accordance with sub‑section (4).
8D.Order to attend counselling
(1)If the Family Violence Court Division is given a report under section 8C and is satisfied that the defendant is eligible to attend counselling approved by the Secretary under section 8G, it must make an order requiring the defendant to attend such counselling, to be provided by a person or body specified in the order.
(2)However, the Family Violence Court Division is not required to make the order if—
(a)there is already in force an order under this section in respect of the defendant; or
(b)the Family Violence Court Division is satisfied that—
(i)there is no counselling approved by the Secretary under section 8G that it is reasonably practicable for the defendant to attend; or
(ii)in all the circumstances of the case, it is not appropriate to make the order for any other reason.
(3)An order under sub-section (1) must—
(a)specify the time and place at which the initial counselling session is to be conducted but the Family Violence Court Division may vary that time and place by the registrar giving reasonable notice (in writing) to the defendant; and
(b)require the person or body who is to provide the counselling to give reasonable notice (in writing) to the defendant of the time and place at which each subsequent counselling session is to be conducted.
(4)A defendant who, without reasonable excuse, contravenes an order under this section by failing to attend counselling is guilty of an offence and liable to a fine not exceeding 10 penalty units.
(5)The defendant is taken to have contravened the order by failing to attend counselling if he or she does not attend a counselling session at the time and place specified in the order or of which the defendant is given notice in accordance with sub-section (3).
(6)A defendant who contravenes an order under this section is only liable to be prosecuted once for an offence against sub‑section (4), regardless of how many counselling sessions the defendant fails to attend.
8E.Effect of appeal against intervention order
(1)If an appeal is lodged under section 20 or 21 against an intervention order in respect of a defendant—
(a)the operation of an order under section 8C or 8D in respect of the defendant is stayed for any period during which the operation of the whole of the intervention order is stayed; and
(b)an order under section 8C or 8D in respect of the defendant ceases to be in force if the effect of the appeal is that the intervention order ceases to be in force—
unless the court hearing the appeal makes an order to the contrary.
(2)An order under section 8C or 8D in respect of a defendant does not otherwise cease to be in force merely because the intervention order in respect of the defendant ceases to be in force.
Division 3Procedures relating to counselling orders—
8F.Notice of hearings
(1)Before the Family Violence Court Division makes an order under section 8C or 8D, or varies or revokes such an order, the registrar must serve on the defendant written notice of the hearing.
Note:Section 8L(3) sets out how a document can be served on a defendant and section 8M allows for substituted service if it does not appear reasonably practicable to serve the document.
(2)The Family Violence Court Division may make the order in the defendant's absence if the defendant fails to attend the hearing.
(3)Despite sub-section (1), if the defendant is before the Family Violence Court Division when it makes an intervention order in respect of the defendant, the Family Violence Court Division may make an order under section 8C, without giving notice to the defendant, immediately after it makes the intervention order.
(4)Sub-section (1) does not apply to a variation under section 8C(4) or 8D(3).
8G.Approval of persons and of counselling
(1)The Secretary may approve (in writing) persons who the Secretary considers have appropriate experience and qualifications to conduct interviews and prepare reports for the purposes of orders under section 8C.
(2)The Secretary may approve (in writing) counselling that the Secretary considers appropriate to address the violence described in section 4(1) to be provided by particular persons or bodies for the purposes of orders under section 8D.
(3)The Secretary must make available to the Family Violence Court Division on request—
(a)a list of the persons approved under sub-section (1) and their contact details; and
(b)a list of the counselling approved under sub-section (2) and the contact details of the particular persons or bodies to provide that counselling.
8H.Person giving report may be required to attend hearing
(1)If a person gives a report to the Family Violence Court Division in accordance with an order under section 8C, the Family Violence Court Division or the defendant may require the person to attend to give evidence at the hearing of the proceeding to which the report relates by filing a written notice with the registrar as soon as possible and, if practicable, not later than 2 working days before the hearing.
(2)On the filing of a notice, the registrar must immediately notify the person concerned that his or her attendance is required on the return date.
(3)A person who, under this section, has been required by the defendant to attend the hearing of a proceeding must, if required by the defendant, be called as a witness and may be cross-examined by the defendant on the contents of the report.
8I.Disputed report
(1)If the defendant disputes any matter in a report given to the Family Violence Court Division in accordance with an order under section 8C, the Family Violence Court Division must not take the disputed matter into consideration when determining the proceeding unless it is satisfied on the balance of probabilities that the matter is true.
(2)If—
(a)the defendant disputes all or part of a report given to the Family Violence Court Division in accordance with an order under section 8C; and
(b)the person who gave the report to the Family Violence Court Division does not attend the hearing of the proceeding despite having been required to attend under section 8H—
the Family Violence Court Division must not take into consideration the report or the part of the report in dispute when determining the proceeding unless the defendant consents to the report or the part of the report in dispute being admitted into evidence.
8J.Explanation of counselling orders
If the Family Violence Court Division proposes to make an order under section 8C or 8D and the defendant is before the Family Violence Court Division, it must explain to the defendant before making the order—
(a)the purpose, terms and effect of the proposed order; and
(b)the consequences that may follow if the defendant fails to comply with the terms of the proposed order; and
(c)the means by which the proposed order may be varied or revoked.
8K.Variation or revocation of counselling orders
(1)The Family Violence Court Division may make an order varying or revoking an order under section 8C or 8D if—
(a)in the case of an order under section 8C or 8D—
(i)there is no longer any counselling approved by the Secretary under section 8G that it is reasonably practicable for the defendant to attend; or
(ii)in all the circumstances of the case, the order is no longer appropriate for any other reason; or
(b)in the case of an order under section 8D only, there has been a change in the circumstances in which the order was made that significantly impacts on the defendant's ability or capacity to participate in counselling.
(2)The Family Violence Court Division may do so on its own initiative or on the application of—
(a)the defendant; or
(b)in the case of an order under section 8C, the person specified in the order who is to conduct the interview and give the report to the Family Violence Court Division; or
(c)in the case of an order under section 8D, the person or body specified in the order who is to provide counselling to the defendant.
(3)The registrar must cause a copy of an application under sub-section (2) to be served personally—
(a)in the case of an application by the defendant, on a person or body referred to in sub-section (2)(b) or (c), as the case may be; or
(b)in the case of an application by a person or body referred to in sub-section (2)(b) or (c), on the defendant.
Note:Section 8L(3) sets out how a document can be served on a defendant and section 8M allows for substituted service if it does not appear reasonably practicable to serve a document on the defendant or another person or body.
8L.Service of counselling orders, eligibility report etc.
(1)If the Family Violence Court Division makes an order under section 8C, 8D or 8K, the registrar must—
(a)arrange for the order to be drawn up and filed in the Family Violence Court Division; and
(b)cause a copy of the order to be served on the defendant as soon as practicable and not later than 10 days after the order is made; and
(c)cause a copy of the order to be forwarded to—
(i)in the case of an order under section 8C or an order under section 8K varying or revoking such an order, the person specified in the order under section 8C who is to conduct the interview and give the report to the Family Violence Court Division; or
(ii)in the case of an order under section 8D or an order under section 8K varying or revoking such an order, the person or body specified in the order under section 8D who is to provide counselling to the defendant.
(2)As soon as practicable and not later than 10 days after the Family Violence Court Division receives—
(a)a report in respect of a defendant in accordance with an order under section 8C; or
(b)a certificate under section 8N in respect of a defendant—
the registrar must cause a copy of the report or certificate to be served on the defendant.
(3)A document required to be served on the defendant under this Part may be served by—
(a)delivering it to the defendant personally; or
(b)leaving it for the defendant at the defendant's last or most usual place of residence or of business with a person who apparently resides or works there and who apparently is not less than 16 years of age.
8M.Substituted service
If it appears to the Family Violence Court Division that it is not reasonably practicable to serve a document that the registrar or another person is required to serve under this Part, the Family Violence Court Division may—
(a)order that the document be served by any other means that the Family Violence Court Division considers appropriate; or
(b)make an order for substituted service.
Division 4—Other matters
8N.Certificate of defendant's non-attendance
(1)If a defendant fails to attend—
(a)an interview with a person in accordance with an order under section 8C; or
(b)counselling to be provided by a person or body in accordance with an order under section 8D—
the person or body (as the case may be) may give the court a certificate, in the form prescribed by the regulations, setting out the details of the defendant's failure to attend.
(2)In the absence of evidence to the contrary, the certificate is proof of the facts contained in it.
8O.Confidentiality of eligibility interview and report
(1)A person who conducts an interview or prepares a report in accordance with an order under section 8C must not disclose any information obtained during the course of conducting the interview or preparing the report to any person who is not entitled to receive or have access to the report.
Penalty:10 penalty units.
(2)A person who receives or otherwise has access to all or part of a report, or a copy of a report, prepared in accordance with an order under section 8C must not disclose any information contained in the report to any person who is not entitled to receive or have access to the report.
Penalty:10 penalty units.
(3)Sub-sections (1) and (2) do not apply to the following disclosures—
(a)a disclosure by, or authorised in writing by, the defendant who is the subject of the report;
(b)a disclosure to a legal practitioner in connection with the giving of legal advice or the provision of representation in a proceeding under this Act;
(c)a disclosure that is authorised by the Family Violence Court Division as necessary for the purposes of this Part or of proceedings for or with respect to a breach of an order under this Part (including any offence constituted by such a breach);
(d)a disclosure that is required, authorised or permitted (whether expressly or impliedly) by or under a law or by a court;
(e)a disclosure authorised by or under Health Privacy Principle 2.2(a), 2.2(b), 2.2(f), 2.2(g), 2.2(h), 2.2(k), 2.2(l) or 2.5 set out in Schedule 1 to the Health Records Act 2001;
(f)a disclosure that does not identify the defendant or from which the defendant's identity cannot reasonably be ascertained.
8P.Confidentiality of counselling
(1)A person or body who provides counselling in accordance with an order under section 8D must not disclose any information obtained during the course of providing the counselling to any person who is not entitled to receive or have access to that information.
Penalty:10 penalty units.
(2)Sub-section (1) does not apply to the following disclosures—
(a)a disclosure by, or authorised in writing by, the defendant to whom the counselling is provided;
(b)a disclosure to a legal practitioner in connection with the giving of legal advice or the provision of representation in a proceeding under this Act;
(c)a disclosure that is authorised by the Family Violence Court Division as necessary for the purposes of this Part or of proceedings for or with respect to a breach of an order under this Part (including any offence constituted by such a breach);
(d)a disclosure that is required, authorised or permitted (whether expressly or impliedly) by or under a law or by a court;
(e)a disclosure authorised by or under Health Privacy Principle 2.2(a), 2.2(b), 2.2(f), 2.2(g), 2.2(h), 2.2(k), 2.2(l) or 2.5 set out in Schedule 1 to the Health Records Act 2001;
(f)a disclosure that does not identify the defendant or from which the defendant's identity cannot reasonably be ascertained.
8Q.Limited use of information by court
Unless the Family Violence Court Division or another court makes an order to the contrary, information that the Family Violence Court Division obtains—
(a)from a report given to it in accordance with an order under section 8C; or
(b)in respect of a defendant's participation in counselling in accordance with an order under section 8D—
may be used only for the purposes of this Part or of proceedings for or with respect to a breach of an order under this Part (including any offence constituted by such a breach).
8R.Authorisation to collect health information
To avoid doubt, for the purposes of the Health Records Act 2001, a person or body who—
(a)conducts an interview or prepares a report in respect of a defendant in accordance with an order under section 8C; or
(b)provides counselling to a defendant in accordance with an order under section 8D—
is authorised to collect such health information (within the meaning of that Act) about the defendant as is necessary for the purposes of conducting the interview, preparing the report or providing the counselling (as the case may be).
8S.Delegation
The Secretary may, by instrument, delegate to any person employed under Part 3 of the Public Sector Management and Employment Act 1998 any power of the Secretary under this Part except this power of delegation.".
15.Heading to Part 3
For the heading to Part 3 of the Crimes (Family Violence) Act 1987 substitute—
"Part 3ProcedureS Relating to Intervention Orders"—.
16.Procedure in third party complaints
(1)In section 13(1) of the Crimes (Family Violence) Act 1987, for "an order" substitute "an intervention order".
(2)For section 13(2) of the Crimes (Family Violence) Act 1987 substitute—
"(2)Sub-section (1) does not apply if—
(a)the applicant under section 16 is the defendant; or
(b)the aggrieved family member is a child and the order was made by the court relying on section 4A(3) or made or varied by the court relying on section 16A(2) or (3).".
17.Rules of evidence not to apply in certain cases
(1)In section 13A(1) of the Crimes (Family Violence) Act 1987, after "contrary" insert ", and is not required to receive evidence from the aggrieved family member before making the order concerned".
(2)At the foot of section 13A(3) of the Crimes (Family Violence) Act 1987 insert—
"Note:Certain children must not give evidence in, or be present during, proceedings under this Act without the court's leave: see section 21B.".
18.Consent orders
In section 14(1)(a) of the Crimes (Family Violence) Act 1987, after "section 4(1)" insert "or section 4A(1) or (3)".
19.Repeal of section 14A
Section 14A of the Crimes (Family Violence) Act 1987 is repealed.
Note:That section is re-enacted in Part 4 of the Act (see section 27 of this Act).
20.Explanation of orders
In section 15(a) of the Crimes (Family Violence) Act 1987, for "an order" substitute "an intervention order".
21.Section 16 substituted
For section 16 of the Crimes (Family Violence) Act 1987 substitute—
"16.Variation, revocation or extension of orders
(1)Subject to sub-section (2), the court may order the variation, revocation or extension of an intervention order or interim intervention order on—
(a)an application under this section; or
(b)its own initiative if the order was made by the court relying on section 4A(3).
Note:Section 16A requires the court to determine certain matters relating to children before varying or revoking an order under this section.
(2)The court may only order that an intervention order or interim intervention order be varied or revoked on the application of the defendant if there has been a change in the circumstances in which the order was made.
(3)If an intervention order or interim intervention order is in force, an application may be made to the court by any of the following persons for an order to vary or revoke the order or extend the period during which it remains in force—
(a)a party to the proceedings in which the order was made;
(b)if the aggrieved family member was not a party to the proceedings, the aggrieved family member;
(c)if the aggrieved family member is a child and the complaint was made with the consent of a parent under section 7(1)(c)(iii), that parent;
(d)if the aggrieved family member is a child and the order was made by the court relying on section 4A(3)—
(i)a parent of the child (other than the defendant); or
(ii)a member of the police force; or
(iii)any other person with the written consent of a parent of the child (other than the defendant) with whom the child normally or regularly resides or with the leave of the court;
(e)if the aggrieved family member is a child who is 14 years of age or over, the aggrieved family member but only with the leave of the court.
(4)If the applicant is not a member of the police force or the aggrieved family member or the defendant, the application may only be made with—
(a)the written consent of—
(i)the aggrieved family member; or
(ii)if the aggrieved family member is a child and the complaint was made with the consent of a parent under section 7(1)(c)(iii), that parent; or
(b)if the aggrieved family member is a child and the order was made by the court relying on section 4A(3), with the written consent of a parent of the child (other than the defendant) with whom the child normally or regularly resides or with the leave of the court.
(5)The applicant must cause a copy of the application to be served on the following persons—
(a)each other party or each party (as the case may be) to the proceedings under which the original order was made;
(b)if the aggrieved family member was not a party to those proceedings and is not the applicant, the aggrieved family member;
(c)if the aggrieved family member is a child and the complaint was made with the consent of a parent under section 7(1)(c)(iii), that parent;
(d)if the aggrieved family member is a child and the order was made by the court relying on section 4A(3), a parent of the child (other than the defendant) with whom the child normally or regularly resides.
(6)A copy of an application required to be served on a person under this section may be served by—
(a)delivering the copy to the person personally; or
(b)leaving the copy for the person at the person's last or most usual place of residence or of business with a person who apparently resides or works there and who apparently is not less than 16 years of age.
(7)If it appears to the court that it is not reasonably practicable to serve, in accordance with sub-section (6), a copy of an application it may—
(a)order that a copy of the application be served by any other means it considers appropriate; or
(b)make an order for substituted service.
(8)If the court orders the variation, revocation or extension of an intervention order or interim intervention order that is registered under a law of another State or a Territory of the Commonwealth corresponding to section 18AA, the registrar must notify the relevant officer of the court in which the order is registered of the terms of the variation, revocation or extension.".
22.New section 16A inserted
After section 16 of the Crimes (Family Violence) Act 1987 insert—
"16A.Additional protection of children in varying or revoking orders
(1)Before varying or revoking an intervention order or interim intervention order under section 16, the court must determine whether—
(a)there has been any change in the need to protect an aggrieved family member who is a child from being subjected to, or hearing or witnessing, violence by the defendant as described in section 4(1); and
(b)there are any children who, since the order was made, have become a family member of the defendant or of the aggrieved family member; and
(c)there are any orders in force under the Family Law Act 1975 of the Commonwealth in respect of the residence of a child referred to in paragraph (a) or (b) or the defendant's contact with such a child.
Note:If there is such an order in force under the Family Law Act 1975 of the Commonwealth, section 68T of that Act may allow the court to vary, discharge or suspend that order.
(2)If a child referred to in sub-section (1)(a) has a continuing need for protection from being subjected to, or hearing or witnessing, violence by the defendant as described in section 4(1) and that need is not substantially the same as that of the other aggrieved family member, the court may (on its own initiative)—
(a)make a new intervention order under section 4 in respect of the child as an aggrieved family member; and
(b)vary the order to which the application under section 16 relates as the court considers appropriate.
(3)If the court is satisfied on the balance of probabilities that a child referred to in sub‑section (1)(b) has been subjected to, or has heard or witnessed, violence by the defendant as described in section 4(1) and is likely again to be subjected to or to hear or witness such violence, the court may (on its own initiative)—
(a)if the child's need for protection is substantially the same as that of the other aggrieved family member—
(i)vary the order to which the application under section 16 relates to include the child as an aggrieved family member; and
(ii)make any other variations to the order that the court considers appropriate; or
(b)in any other case, make a separate intervention order under section 4 in respect of the child as an aggrieved family member.
(4)If—
(a)the court makes or varies an order relying on sub-section (2) or (3); and
(b)there is a subsequent application under section 16 to vary, revoke or extend the order or the court considers it appropriate to vary, revoke or extend the order on its own initiative—
for the purposes of that application, a reference in section 16 to an order made relying on section 4A(3) is taken to include a reference to an order made or varied relying on sub-section (2) or (3) of this section.
(5)Sub-sections (2) and (3) have effect despite anything to the contrary in section 4.
Note:Certain children must not give evidence in, or be present during, proceedings under this Act without the court's leave: see section 21B.".
23.Service of intervention orders
(1)In section 17(1) of the Crimes (Family Violence) Act 1987, for "an order" substitute "an intervention order or interim intervention order".
(2)After section 17(1)(d)(iv) of the Crimes (Family Violence) Act 1987 insert—
"(iva)if the aggrieved family member is a child and the order was made by the court relying on section 4A(3) or made or varied by the court relying on section 16A(2) or (3), a parent of the child (other than the defendant) with whom the child normally or regularly resides; and".
24.Repeal of section 18
Section 18 of the Crimes (Family Violence) Act 1987 is repealed.
Note:That section is re-enacted in Part 4 of the Act (see section 27 of this Act).
25.Appeal by defendant
(1)For section 20(1) of the Crimes (Family Violence) Act 1987 substitute—
"(1)The defendant may appeal to the County Court (or, if the court was the Children's Court constituted by the President of that Court, to the Trial Division of the Supreme Court) against—
(a)the making of an intervention order; or
(b)the making of an order under section 8C or 8D; or
(c)the making of, or refusal to make, an order under section 8K; or
(d)the making of, or refusal to make, an order under section 16; or
(e)any term of an order referred to in paragraph (a) to (d).".
(2)For section 20(3) of the Crimes (Family Violence) Act 1987 substitute—
"(3)In the case of an appeal concerning an order referred to in sub-section (1)(a) or (d) or any term of such an order, the appellant must give notice of the appeal to—
(a)an aggrieved family member who was not a party to the proceedings for the order appealed against; or
(b)if the aggrieved family member is a child and the complaint was made with the consent of a parent of the child under section 7(1)(c)(iii), to that parent; or
(c)if the aggrieved family member is a child and the order was made by the court relying on section 4A(3) or made or varied by the court relying on section 16A(2) or (3), a parent of the child (other than the appellant) with whom the child normally or regularly resides—
as if the aggrieved family member or parent were a party.".
26.Appeal by complainant
(1)In section 21(1AA) of the Crimes (Family Violence) Act 1987, for the definition of "complainant" substitute the following definition—
' "complainant" includes—
(a)an applicant for an order under section 16; and
(b)if the court in which the appeal is to be lodged grants leave to appeal, a child who is 14 years of age or over in respect of whom an order was made by the court relying on section 4A(3) or made or varied by the court relying on 16A(2) or (3);'.
(2)In section 21(1AA) of the Crimes (Family Violence) Act 1987, for the definition of "order" substitute the following definition—
' "intervention order" includes an order under section 16 to vary, revoke or extend an intervention order or interim intervention order.'.
(3)In section 21(1)(a) and (b) of the Crimes (Family Violence) Act 1987, for "an order" (wherever occurring) substitute "an intervention order".
(4)In section 21(2) of the Crimes (Family Violence) Act 1987—
(a)for "order" (twice occurring) substitute "intervention order";
(b)after paragraph (d) insert—
"(da)if the aggrieved family member is a child and the order was made by the court relying on section 4A(3) or made or varied by the court relying on section 16A(2) or (3), a parent of the child (other than the defendant) with whom the child normally or regularly resides; and".
(5)In section 21(6) of the Crimes (Family Violence) Act 1987, for "the order" substitute "the intervention order".
27.New sections 21A to 21D inserted
After section 21 of the Crimes (Family Violence) Act 1987 insert—
"21A.Affidavit evidence
(1)The court may admit in proceedings under this Act, other than proceedings arising under section 21A of the Crimes Act 1958, evidence given by a person by affidavit despite any rules of evidence to the contrary or anything to the contrary in this Act (other than section 21B) or any other Act.
(2)A party to the proceedings may, with the leave of the court or in accordance with an order under section 21B, require a person giving evidence by affidavit to attend the hearing of the proceedings, to be called as a witness and to be cross-examined.
21B.Restriction on evidence by and presence of children
(1)A child (other than a child who is or is seeking to become a party to proceedings) must not give evidence by affidavit for the purposes of proceedings under this Act unless the court makes an order allowing the child to do so.
(2)A child (other than a child who is the defendant in proceedings for an intervention order or interim intervention order) who is—
(a)the aggrieved family member in such proceedings; or
(b)a family member of the defendant or of the aggrieved family member in such proceedings—
must not be present during, or called as a witness in, those proceedings unless the court makes an order allowing the child to be present or called as a witness (as the case may be).
21C.Costs
(1)Each party to proceedings under this Act must bear his or her own costs of those proceedings, unless the court decides that exceptional circumstances warrant otherwise in a particular case.
(2)Despite sub-section (1), if the court is satisfied in a particular case that the making of any application under this Act was vexatious, frivolous or in bad faith, the court may award costs against the applicant.
21D.Concurrent criminal proceedings
(1)The court may make an intervention order, interim intervention order or a counselling order in respect of a person even though the person has been charged with an offence arising out of the same conduct as that out of which the complaint for the intervention order arose.
(2)The order may be made at any time before or after the commencement of proceedings for the offence.".
28.Breach of an order
In section 22(1) of the Crimes (Family Violence) Act 1987, for "an order" substitute "an intervention order or interim intervention order".
29.Restriction on reports of proceedings involving children
In section 24 of the Crimes (Family Violence) Act 1987, for "If the aggrieved family member is a child, in proceedings under this Act—" substitute "If a party to, or witness in, proceedings under this Act is a child—".
30.Intervention order prevails over order under Children and Young Persons Act 1989
In section 25 of the Crimes (Family Violence) Act 1987, for "An order" substitute "An intervention order or interim intervention order".
31.Relationship with Family Court contact orders
In section 25A of the Crimes (Family Violence) Act 1987, for "An order" substitute "An intervention order or interim intervention order".
32.Validation of certain orders
In section 25AB(1) of the Crimes (Family Violence) Act 1987, for "An order" substitute "An intervention order or interim intervention order".
33.Transitional
In section 27 of the Crimes (Family Violence) Act 1987, for "apply to an order" substitute "apply to an intervention order or interim intervention order".
__________________
Part 4—Repeal of Counselling Order Provisions
Division 1Magistrates' Court Act 1989—
34.Jurisdiction of Family Violence Court Division
For section 4I(1)(a) of the Magistrates' Court Act 1989 substitute—
"(a)proceedings for or with respect to—
(i)an intervention order or interim intervention order under the Crimes (Family Violence) Act 1987; or
(ii)an order under section 16 of that Act;".
Division 2Crimes (Family Violence) Act 1987—
35.Purpose
In section 1 of the Crimes (Family Violence) Act 1987 omit "and counselling orders".
36.Definition
In section 3(1) of the Crimes (Family Violence) Act 1987, the definition of "counselling order" is repealed.
37.Intervention orders
The note at the foot of section 4 of the Crimes (Family Violence) Act 1987 is repealed.
38.Part 2A repealed
Part 2A of the Crimes (Family Violence) Act 1987 is repealed.
39.Appeal by defendant
(1)In section 20(1) of the Crimes (Family Violence) Act 1987, for paragraphs (a) to (e) substitute—
"(a)the making of an intervention order;
(b)the making of, or refusal to make, an order under section 16; or
(c)any term of an order referred to in paragraph (a) or (b).".
(2)In section 20(3) of the Crimes (Family Violence) Act 1987, for "sub-section (1)(a) or (d)" substitute "sub-section (1)(a) or (b)".
40.Concurrent criminal proceedings
In section 21D(1) of the Crimes (Family Violence) Act 1987 for ", interim intervention order or a counselling order" substitute "or interim intervention order".
41.New section 28 inserted
After section 27 of the Crimes (Family Violence) Act 1987 insert—
'28.Transitional: repeal of amendments made by the Magistrates' Court (Family Violence) Act 2004
(1)In this section, "amending Act" means the Magistrates' Court (Family Violence) Act 2004.
(2)Despite the amendments made by Part 4 of the amending Act, this Act as in force immediately before the commencement of that Part continues to apply to orders made under section 8D of this Act before that commencement.'.
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Endnotes
Minister's second reading speech—
Legislative Assembly: 26 August 2004
Legislative Council: 13 October 2004
The long title for the Bill for this Act was "to amend the Magistrates' Court Act 1989 to establish the Family Violence Court Division of the Magistrates' Court, to amend the Crimes (Family Violence) Act 1987 and for other purposes."
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