On 29 March 2018 further amendments were made to the Family Violence Protection Act 2008 (Vic) creating greater protections for those within our community experiencing family violence. These amendments formed part of the Family Violence Protection Amendment Act 2017. Of these amendments three will have the greatest impact on the court.
The amended provisions include:
- The requirement of the court to explain both interim and final orders;
- Greater protection for children experiencing family violence;
- Greater flexibility to order alternative means of service; and
Explanation of Orders:
Previously an oral explanation of Intervention Orders was only required when a Magistrate made a final order. The new provisions now require that the Magistrate must explain both interim and final orders. The explanation must include matters such as:
- The purpose and terms of the order;
- Consequences and penalties of failing to comply with the order;
- Expiration of the order; and
- That the protected person cannot give permission to contravene the order.
Importantly the changes now require that the Magistrate to explain the interaction between the order and any child protection or family law orders, and if the granting of an Intervention Order has varied, suspended or revoked any such orders under the child protection or Family Law Act.
It is also important to note that contravention of an order can now be proven in circumstances where an adult respondent has received an oral explanation, but has not formally been served with a copy of the order.
Protection of Children
Magistrates have always been required to consider if the child of an Affected Family Member was at risk of experiencing family violence in determination of Intervention Order applications.
The new provisions now impose an obligation on Magistrates to make an order to protect a child of an Affected Family member who has experienced family violence, unless the court is satisfied that it is not necessary to make any such order. Essentially, this new provision establishes a different tests for an adult affected family member and their child in determining the appropriateness of an Intervention Order.
The standard for determining if an Intervention Order should be made for an adult Affected Family Member remains the same. This is, the court must make an order for the protection of an Affected Family Member if they are satisfied that the respondent has committed family violence and is likely to do so again. Previously, this was also the standard by which the court determined order for the protection of a child.
The test for a child of an Affected Family Member is now that the child has been subject to family violence by the respondent. The new provisions do not require that the court must be satisfied that the child is likely to experience family violence again. Therefore, the burden of proof for predicting future conduct is shifted away from the child and onto the respondent to establish that an Intervention Order is not necessary.
Alternative means of service:
The new provisions allow for greater flexibility by way of alternative methods of service when the respondent is an adult. Such alternative means include by post or email.
Therefore, it is important to note that alternative methods of service may only be used if the court makes an order to do so. The court may only make such an order to substitute personal service if it is satisfied that:
- Alternative service is likely to bring the document to the attention of the person served; and
- Alternative service will not pose an unacceptable risk to the safety of the affected family member or protected person.
Alternative service is not available for:
- A Family Violence Safety Notice;
- For service of a document on a child.
At Caroline Counsel Family Lawyers, we have experience in matters which involve family violence and are sensitive to your unique circumstances. We are able to tailor our approach to ensure we represent your best interests. We are able to assist you with applying for an Intervention Order and in any other family law matters involving family violence.
Caroline Counsel has been heavily involved in the family violence sector in Victoria. Caroline currently holds the family violence portfolio for the Law Institute, wrote a submission and gave evidence to the Royal Commission into Family Violence. She was instrumental in the establishment of the Family Violence Taskforce now under the leadership of Chief Magistrate Peter Lauristen. The focus of this Taskforce was to consider the recommendations of the Royal Commission and assist government.
In addition to Caroline’s extensive experience, all of our lawyers have completed family violence training.
If you find yourself in a situation where you require assistance, please contact our office on 9320 3900 or [email protected]. If you are in danger and concerned for your welfare or the welfare of another person please contact 000.
The information in this blog does not constitute legal advice and cannot be relied upon by you. If you require advice specific to your situation you must contact Caroline Counsel Family Lawyers for legal advice. The contents of this blog are relevant as at 13 April 2018. We recommend you obtain specific advice relevant to you and your family’s situation.
By Harry Higgs and Caroline Counsel