Family Violence Protection Amendment Bill 2014

Amended Print

EXPLANATORY MEMORANDUM

571438

BILL LC AMENDED 17/9/2014

Clause Notes

PART 1—PRELIMINARY

Clause 1sets out the purposes of the Bill.

Clause 2provides for the commencement of the Bill. The provisions of this Bill commence on 18September 2015, if they are not proclaimed to commence earlier.

The default commencement date is just over 12 months after the introduction of the Bill to ensure that justice agencies have sufficient time to complete all the implementation activities that are necessary for the reforms to commence, in particular the new process to provide for interim orders to become final without further hearing.

PART 2—AMENDMENT OF FAMILY VIOLENCE PROTECTION ACT 2008

Clause 3inserts new definitions of finalisation condition and working day and substitutes the definition of publish in section 4 of the Family Violence Protection Act 2008.

The existing definition of publish in the Family Violence Protection Act 2008 provides that publish"means publish in any newspaper; or publish by means of television, radio or the internet". This definition is too narrow to achieve its original policy objective to ensure those seeking protection through the legal system had their privacy protected, and that victims were not dissuaded from seeking protection because of fear of public exposure, particularly where they or their family member has a public profile. The new definition will achieve this objective and better reflect how the publication restrictions in Part 8 of the Family Violence Protection Act 2008 have been applied in practice.

The definition is aimed at broad and public dissemination of information and the new definition of publish will not limit the lawful exchange of information that occurs between and amongst government and nongovernment agencies in the normal course of their work providing protection, services or support programs to the parties, the purpose of which is to ensure the safety of affected family members and their children.

Clause 4amends the definition of final order in subsection (2) of section11 of the Family Violence Protection Act 2008so
that it includes final orders taken to have been made under new section78A.

Clause 5repeals paragraph (f) of section 24 of the Family Violence Protection Act 2008, which limits when a police officer responding to a family violence incident may apply to a Sergeant or a higher rank officer for a family violence safety notice (FVSN) to before 9.00am or after 5.00pm on a weekday, or on a weekend or public holiday. The effect of this amendment is that a Sergeant or a higher rank officer may issue a FVSN at any time of the day on any day of the week.

Clause 6substitutes subsection (3) of section 31 of the Family Violence Protection Act 2008 so that the first mention date for an application for a family violence intervention order (FVIO) commenced by FVSN is extended to 5 working days after the notice is served on the respondent.

Clause 7substitutes subsection (4) of section 44 of the Family Violence Protection Act 2008.

Section 44 allows a police officer who intends to make an FVIO application and is seeking an interim order to make the application by telephone, fax or other electronic communication if the application is made either outside of court hours or from a remote location.

Existing subsection (4) requires the police officer to file an application made by such means with the court before the first mention date for the application. New subsection (4) updates this requirement to provide that where the interim order includes a finalisation condition the application must be filed as soon as practicable and in any other case before the first mention date for the application.

Clause 8inserts new sections 56A to 56C in the Family Violence Protection Act 2008. These sections establish a new process under which an interim order may become a final order without further hearing.

Subsection (1) of section 56A provides that, subject to section56C, if the court makes an interim order it may include a condition (finalisation condition) providing that the interim order becomes a final order, with the same conditions as the interim order, 28 days after being served on the respondent. Thecourt may include a finalisation condition in an interim order if satisfied that it would be appropriate in all of the circumstances of the case to include such a condition.

Subsection (2) of section 56A sets out a list of non-exhaustive factors that the court must have regard to in considering whether it is appropriate to include a finalisation condition. These are set out in the paragraphs in subsection (2). Broadly, these factors relate to the vulnerability of the affected family member and to the legal complexity of a matter and are indicators that the continued involvement of the court may be warranted in finally determining the FVIO application.

Paragraph (a) refers to whether there is a history of family violence.

Paragraph (b) refers to the existence of recognised family violence risk factors. Thereare a number of evidence based risk factors relevant to determining the risk of family violence reoccurring or escalating. These include certain characteristics relating to the victim, the perpetrator, or their relationship.

Paragraph (c) refers to the existence of—

  • other proceedings between the parties under the Family Violence Protection Act 2008; or
  • other proceedings between the affected family member and any other persons under the Family Violence Protection Act 2008; or
  • other legal proceedings that may affect the conditions or operation of the FVIO (e.g. proceedings relating to a child protection order, Family Law Act proceedings or criminal proceedings).

Paragraph (d) refers to the views of the police officer or other person (if applicable) who made the application for the affected family member as to the inclusion of the finalisation condition.

The paragraph that follows refers to whether the affected family member has obtained legal advice.

The paragraph that follows refers to whether the giving or service of the interim order and the giving of the explanation of the interim order under section 57(1) will enable the particular affected family member and respondent to sufficiently understand the matters set out in section 57(1).

The paragraph that follows refers to the existence of factors making it desirable that the particular respondent attend a hearing for the final order.

A court that is making an interim order must consider risk factors like those in paragraphs (a) and (b) in deciding if it is satisfied that including a finalisation condition is appropriate in all the circumstances. It must also consider other matters such as the existence of other legal proceedings and how these might interact with any order that the court might decide to make. Further, the police officer making the FVIO application on behalf of the affected family member may have a view as to the inclusion of a finalisation condition in the particular case.

For example, a court making an interim order may consider that the circumstances of the parties are likely to change substantially in the coming weeks due to pending court proceedings or medical assessments and accordingly, in all the circumstances it would be prudent for the court to reconsider the application and the conditions on any future final order once the parties' circumstances are more settled.

Another example might be where a magistrate is making an interim order in circumstances where there has been a history of family violence and that violence appears to have escalated in recent days. There may also be relevant family violence risk factors present that might suggest further escalation of violence is possible. In such circumstances, a magistrate might want the application to return to court for final determination to ensure that any conditions imposed on a final order are appropriate to the circumstances at that later time.

A further example might be where a magistrate is making an interim order and is satisfied that the parties' circumstances are fairly stable and the type of conditions that are appropriate on the interim order would also be appropriate for any final order. Inthese instances, the magistrate might decide to include a finalisation condition.

Subsection (3) of section 56A provides that when including a finalisation condition, the court must specify a period for which the final order is to be in force having regard to the matters set out in subsections (2) and (3) of section 97 of the Family Violence Protection Act 2008.

If the court specifies the period for which a final order is to be in force, when making the decision about the duration of that period, the court must take into account the matters in subsections 97(2) and (3). These matters include: that the safety of protected person is paramount; any assessment by the protected person of the level and duration of risk from the respondent; and any other relevant matters raised by the respondent. As an interim order that includes a finalisation condition may become a final order without further hearing, it isappropriate that the court have regard to the matters in section97(2) and (3) when specifying the period for which the final order is to be in force.

Subsection (4) of section 56A provides that a finalisation condition does not take effect if the respondent cannot be served personally with the interim order. This will ensure that respondents to interim orders including such conditions know an order has been made against them and that they must act if they want the matter to return to court for final determination. Thiswill prevent such respondents from being subject to a final order without having had any personal contact with either the court or police.

Section 56B makes provisions for when a finalisation condition ceases to have effect. Subsection (1) of that section provides that a finalisation condition ceases to have effect within the 28 day period after the interim order is served on the respondent on the first of the following circumstances occurring—

  • on the filing by the respondent of a notice to contest the FVIO application; or
  • on the filing by the protected person or applicant of a written notice, or the making of an oral application to the court, for withdrawal of the FVIO application; or
  • on the making of an application to vary or revoke the interim order; or
  • on the varying of the interim order by the court on its own motion.

Subsection (2) of section 56B provides that if a finalisation condition ceases to have effect, the interim order continues in force until it ends in accordance with section 60 of the Family Violence Protection Act 2008.

Subsection (3) of section 56B provides that, as soon as practicable after the finalisation condition ceases to have effect, the court must ensure the FVIO application is listed as soon as practicable, and give notice to the parties.

Section 56C prohibits the court from including a finalisation condition in an interim order in relation to certain respondents and in certain circumstances. Subsection (1) of that section provides that the court must not include a finalisation condition in an interim order if—

  • the court reasonably suspects that the respondent is a child; or
  • the court reasonably suspects that the respondent has a cognitive impairment; or
  • the court reasonably suspects that the respondent either holds a firearms authority, weapons approval or exemption, or is in possession of a firearm or prohibited weapon; or
  • the court is satisfied that there is an order in force in relation to a child of the affected family member or respondent under the Family Law Actand the interim order would be inconsistentwith that order; or
  • the affected family member does not consent to the inclusion of a finalisation condition.

Subsection (2) of section 56C provides that a relevant court within the meaning of section 126 of the Family Violence Protection Act 2008 must not include a finalisation condition in an interim order if satisfied that, on making a final order, it may be required to make an order under section 129. Relevant courts are the Family Violence Court Divisions and other specified venues of the Magistrates' Court that are empowered to order certain respondents to final orders to have their eligibility for counselling assessed and to order eligible respondents to attend counselling. This amendment will mean that finalisation conditions are not included in interim orders where a relevant court is satisfied that it may be required to order the respondent to have their eligible for counselling assessed. As such, the new process under which interim orders may become final orders without further hearing will be able to operate with the court mandated counselling programs at relevant courts in relation to those respondents for whom the court is satisfied it would not be required to make an assessment order under section 129. For example, if the court was satisfied upon making the interim order that there was no counselling approved by the Secretary under section 133 of the Family Violence Protection Act 2008 that it is reasonably practicable for the respondent to attend, then the court may include a finalisation condition in the interim order.

Subsection (3) of section 56C provides that a court must not include a finalisation condition in an interim order made under section 173 of the Family Violence Protection Act 2008.

The Bill makes no provision to prohibit the inclusion of finalisation conditions in interim extension orders made under section 107 of the Family Violence Protection Act 2008 on the basis that under section 11 of the Family Violence Protection Act 2008, orders made under section 107 are not interim orders but are defined as final orders. As such, a finalisation condition cannot be included in an order made under section 107.

Nothing in the Bill prohibits a finalisation condition being included in an interim variation order made under section 101 of the Family Violence Protection Act 2008 as these orders are defined to be interim orders under section 11 of that Act, if it is otherwise appropriate for the court to do so.

Clause 9substitutes subsection (1) of section 57 of the Family Violence Protection Act 2008, which provides for explanation of interim orders.

New subsection (1)provides that if an interim order is made, the appropriate registrar of the court must give the respondent and the affected family member a written explanation of the order. The information which must be included in the explanation is set out in paragraphs (a) to (h) of subsection (1) and includes—

  • the purpose, terms and effect of the interim order;
  • the consequences and penalties that may follow if the respondent fails to comply with the terms of the interim order;
  • for the respondent, that the interim order is a civil order of the court and the affected family member cannot give permission to contravene the interim order;
  • how the order interacts with a Family Law Actorder or an order under the Children, Youth and Families Act 2005;
  • if the court has varied, suspended, revoked or revived a Family Law Actorder because it is inconsistent with the interim order, the purpose, terms and effect of the variation or suspension;
  • any relevant family violence services offering legal, emotional or practical support that may be available to the affected family member or respondent;
  • if the interim order does not include a finalisation condition—
  • when the interim order expires and the means by which the interim order may be varied; and
  • the process for deciding the final order;
  • if the interim order includes a finalisation condition—
  • that the interim order will become a final order 28 days after it is served on the respondent; and
  • the circumstances in which the interim order will not become a final order; and
  • the consequences of the interim order becoming a final order, including the effect on any firearms authority or weapons approval held by the respondent or weapons exemption which applies to the respondent.

This largely replicates existing subsection (1) of section 57. However, the provision has been expanded to cover additional matters that must be included in the written explanation when an interim order includes a finalisation condition and amended to recognise that some matters are not relevant to these interim orders.

New subsection (1A) of section 57 provides that a written explanation under subsection (1) in respect of an interim order that includes a finalisation condition may change the explanation required by paragraphs (a) to (e) to accord with the effect of that condition.

Clause 10amends section 58 of the Family Violence Protection Act 2008,which sets out some procedural requirements relating to interim orders made by electronic application.

Section 58 provides that when an FVIO application is made by telephone, fax or other electronic communication, the court is required to inform the police officer of a number of things which are set out in paragraphs (a) to (d). These include the terms and period of operation of the order and the date, time and venue of the court for the first mention for the application.

New paragraph (c) of section 58 provides that if an interim order does not include a finalisation condition the court is required to provide the police officer with—

  • the venue of the court for the first mention date for the FVIO application; and
  • the date and time of the first mention date for the FVIO application.

Clause 11amends section 59 of the Family Violence Protection Act 2008 so that the requirement applying when the court makes an interim order for the hearing to be listed for decision about the final order as soon as practicable does not apply to interim orders including a finalisation condition.

Clause 12inserts new subsection (2) in section 60 of the Family Violence Protection Act 2008. Section 60 provides for when an interim order ends including—

  • if the court makes a final order and the final order includes an order that the interim order continues until the final order is served on the respondent, when the final order is served on the respondent; or
  • if the court makes a final order and the final order does not include an order about the interim order continuing, at the time the final order is made; or
  • if the court refuses to make a final order in relation to the application, at the time of the refusal; or
  • if the interim order is revoked by the court, at the time of the revocation; or
  • if the application for the FVIO is withdrawn, at the time of the withdrawal.

Subsection (2) provides that section 60 does not apply to an interim order that includes a finalisation condition, unless that condition has ceased to have effect under section 56B.