By Kristina Antoniades (Special Counsel)
On 29 March 2018, the remaining provisions of the Family Violence Protection Amendment Act 2017 (the Amending Act) commenced. These amendments implement the recommendations of the Family Violence Royal Commission (Royal Commission) and now form part of the Family Violence Protection Act 2008 (Vic) (the Act).
The amendments provide for:
- better explanations of interim and final intervention orders by courts;
- better protection for children who have been subjected to family violence;
- more flexibility for service of Intervention Orders; and
- better protection for children and cognitively impaired witnesses when giving evidence.
Explanations of family violence intervention orders
Previously, a court was only required to explain final orders orally (as well as giving the parties a written explanation) – not interim orders.
The Amending Act now requires Magistrates to explain both interim and final orders. When making a final family violence intervention order, the presiding Magistrate must also explain to the parties:
- the interaction between that order and any family law or child protection orders; and
- the purpose, terms and effect of any final order that has varied, suspended, revoked or revived a family law order.
For family law, this is a very important addition to the Act. It means that a “reasonable excuse” argument (arising from the implications of a family violence order) will no longer be a valid argument for contravention of family law orders. As a result, parties to a family law order and a family violence order can no longer plead ignorance as to the interaction between the two orders.
Explanations of orders – adult and child respondents
The Amendment Act also introduces separate provisions regarding explanations of Orders for child and adult respondents.
A family violence protection order will be deemed to have been served on an adult respondent if they are present in court and receive the oral explanation in court. It is not then necessary to serve the order on the adult respondent – it’s sufficient to simply give them a copy of the order. This allows the order to be enforced from the moment it is made.
However, the court must serve the written explanation on a child respondent, even if the child is present in court.
Previously victims of family violence could wait up to a week for a court issued family violence protection order to be served on the respondent by Victoria Police. Often this period is the most dangerous time for victims of family violence – many live in emergency accommodation (in most cases, with young children) and are too fearful to return to their home. This amendment provides certainty for victims of family violence that the perpetrator has been served with the Order at court and they themselves are safe to return home.
Orders protecting children
When deciding applications for intervention orders, the Act has always required the court to consider whether a child of the affected family member was at risk of family violence.
Under the amendments, the court is now obliged to make an order to protect a child who has been subjected to family violence by the respondent, unless it is satisfied that an order is not necessary. In practice, this means that the court is now required to apply a different test when determining whether to make an order in relation to a child. The court may make an order to protect an affected family member if satisfied that the respondent has committed family violence against the person and is likely to do so again. When it comes to a child, the only test is whether that child has been subjected to family violence by the respondent.
The court can make an order in relation to a child on its own motion even if the court does not make an order in relation to the affected family member, and even if there is no application before the court in relation to the child.
Service of family violence orders
The Amending Act gives courts greater flexibility to order alternative service where the respondent is an adult, including service by post or service by email.
Alternative service of an order can only be made by the court in the following circumstances:
- The court is satisfied that alternative service is likely to bring the document to the attention of the person served;
- Alternative service will not pose an unacceptable risk to the safety of the affected family member, protected person or any other person; and
- Alternative service is appropriate in the circumstances.
Orders for alternative service can be made on application or on the court’s own motion.
Alternative service is not available for the service of a family violence safety notice, nor for service of any document required by the Act upon a child under the age of 18 years.
Evidence of family violence in criminal matters
The definition of family violence under the Act will now be used in criminal proceedings to characterise a defendant’s alleged conduct and determine whether a child or cognitively impaired witness may give evidence by Visual and Audio Recording of Evidence (VARE).
Where it is determined by the court that the conduct constituting the offence consists of family violence within the meaning of the Act, a VARE can now be used for witnesses when giving evidence. The witnesses are not physically required to be in court and will not have to face the Defendant in the court room.
Are you affected by family violence?
All of these amendments are a welcome addition to the Act and incorporate the recommendations of the Royal Commission.
If you, or someone you know, are experiencing family violence, please contact us for advice. For many victims of family violence, knowledge is power. The lawyers in our Family and Relationship Law team are dedicated professionals with extensive experience in this area of law.