The Family Violence Protection Act 2008

Transcription

1 Law Enforcement Client Newsletter The Family Violence Protection Act 2008 October 2008 The Family Violence Protection Act 2008 (the Act) was assented to on 23 September The Act is not yet in effect. However, the Government is working towards commencing the Act towards the end of the year. The Act replaces the system of family violence intervention orders established by the Crimes (Family Violence) Act 1987 for family members. After the Crimes (Family Violence) Act 1987 had operated for a number of years, the Victorian Law Reform Commission conducted a review and made various recommendations for improvement, including the adoption of a new Act to provide a targeted and cohesive response to family violence. 1 Purpose of the Act The Act has three primary purposes: to maximise safety for children and adults who have experienced family violence; to prevent and reduce family violence to the greatest extent possible; and to promote the accountability of perpetrators of family violence for their actions. Broader definition of family member The Act broadens the definition of family member to include: Summary The Family Violence Protection Act 2008 replaces the system of family violence intervention orders established by the Crimes (Family Violence) Act 1987 for family members. The Act seeks to maximise the protection and safety of persons who have experienced family violence and promote the accountability of perpetrators of family violence for their actions. Importantly, the Act empowers the police to issue Family Violence Safety Notices. These notices are for use outside of court hours and provide police with another tool to ensure that immediate protection is available when police respond to an incident. Family Violence Safety Notices may include the same conditions as a family violence intervention order and last until the application for a family violence intervention order is brought before the court. a current or former spouse or domestic partner; a person who has, or has had, an intimate personal relationship with the relevant person; a current or former relative; a child who normally lives or has lived with the relevant person; and a child of a person who has, or has had, an intimate personal relationship with the perpetrator of violence.

2 Broader definition of family violence The Act also extends the definition of family violence to behaviour that is physically or sexually abusive, emotionally or psychologically abusive, threatening or coercive, or in any other way controls or dominates the family member and causes that family member to fear for his or her safety or wellbeing or for the safety or wellbeing of another person. Examples of behaviour that may be considered family violence for the purposes of the Act include: causing a child to hear or witness, or otherwise be exposed to the effects of, family violence; coercing a family member to relinquish control over assets and income; removing or keeping a family member s property without permission, or threatening to do so; threatening to disclose a person s sexual orientation to the person s friends or family against the person s wishes; threatening to withhold a person s medication; preventing a person from making or keeping connections with the person s family, friends or culture, including cultural or spiritual ceremonies or practices, or preventing the person from expressing the person s cultural identity; or threatening to commit suicide or self harm with the intention of tormenting or intimidating a family member. Family Violence Safety Notices Another important change that affects current Victoria Police practice is the introduction of a police-issued Family Violence Safety Notice (F-V-S-N) for use at times outside of court hours. The F-V-S-N will provide police with another Page 2 tool to provide after hours protection to victims of family violence where it is needed immediately and will make it easier for victims of family violence to remain in their homes and have the perpetrators of family violence (now called respondents) excluded. 2 (i) Who can apply for a F-V-S-N? A police member (the responding police member) who responds in person to an incident involving family violence and assesses that there is an immediate risk to the safety of the affected family member 3 or his or her children, in circumstances where either the court is closed or the normal court processes cannot be accessed, may apply for a F-V-S-N. (ii) In what circumstances? The responding police member may only apply for a F-V-S-N if the responding police member a) has reasonable grounds to suspect that the respondent is an adult without a cognitive impairment; b) has no reasonable grounds for suspecting there is a Family Law Act order or child protection order in force that may be inconsistent with the proposed terms of the notice, after making reasonable enquiries of the respondent, the affected family member and any other adults at the scene of the incident; c) believes on reasonable grounds there is no family violence intervention order in place between the affected family member and the respondent; d) believes on reasonable grounds that, until an application for a family violence intervention order can be decided by the court, a F-V-S-N is necessary i. to ensure the safety of the affected family member; or ii. to preserve any property of the affected family member; or

3 iii. to protect a child who has been subjected to family violence committed by the respondent; and e) makes the application i. before 9 a.m. or after 5 p.m. on a weekday; or ii. (iii) To whom? on a Saturday, Sunday or public holiday. 4 The responding police member must apply to another police member of the rank of Sergeant or a higher rank (who has been appropriately trained) for a F-V-S-N. 5 The responding police member must make the application to a Sergeant or above, notwithstanding the responding police member may be of the rank of Sergeant or above. This is to ensure transparency and accountability with the new F-V-S-N system. (iv) How is an application made? An application for a F-V-S-N may be made a) in person; or b) by fax or telephone or other electronic communication. 6 (v) How is the decision about whether to issue the F-V-S-N made? A police officer of the rank of Sergeant or a higher rank who receives an application for a F-V-S-N may issue a F-V-S-N if a) the police member believes on reasonable grounds there is no family violence intervention order in place between the affected family member and the respondent; and b) the police member believes on reasonable grounds that issuing the F-V-S-N is necessary to ensure the safety of the affected family member; or to preserve any property of the affected family member; or to protect a child who has been subjected to family violence committed by the respondent. 7 Page 3 The police member may, if practicable, hear the respondent or the affected family member. This is to ensure procedural fairness while recognising that hearing all parties will not always be practical due to the urgent nature of the application. (vi) What is included on the F-V-S-N? When issuing the F-V-S-N that member must include on the F-V-S-N: the names of the respondent and the protected person; the time and date the F-V-S-N was issued; the time, date and location for the first mention date for an application for a family violence intervention order relating to the incident; that the F-V-S-N is a summons for the respondent to appear at the court on the first mention date; the period for which the F-V-S-N applies; a brief statement of the reasons for issuing the F-V-S-N; the conditions of the F-V-S-N; an address nominated by the respondent for service of documents, if provided; the name, rank and station of the issuing police member; the name, rank and station of the police member who applied for the F-V-S-N; and any other matters prescribed. 8 Where the application for a F-V-S-N is made in person, the issuing police member must make the F-V-S-N on oath or by affidavit, or certify the F-V-S-N. 9 Where the application for a F-V-S-N is made by telephone, fax or other electronic communication, the issuing police member must also complete an authorisation form 10 containing key information and certify same and the police member who made the application must complete a safety notice form that includes the

4 same information that must be included in the F-V-S-N and certify the safety notice form. 11 (vii) What conditions can be included in a F-V-S-N? The conditions that may be included in a F-V-S-N are the same as those that may be included on a family violence intervention order. 12 Before including in a F-V-S-N a condition prohibiting the respondent from being anywhere within a specified distance from a particular place, the issuing police member must make reasonable enquiries to ensure this will be practical in the particular circumstances. 13 (viii) Service of the F-V-S-N As soon as practicable after a F-V-S-N is issued, a police member must serve a copy of the F-V-S-N on the respondent and protected person and the relevant documentation must be filed with the Magistrates Court. The F-V-S-N will act as a summons to attend court within 72 hours for the hearing of a family violence intervention order. 14 If a public holiday makes this impossible, the first court mention date (stated in the F-V-S-N) will take place on the next working day after the public holiday. The police member who serves the F-V-S-N must provide an explanation of the F-V-S-N and take reasonable steps to ensure the person understands the nature and consequences of the F-V-S-N. 15 (ix) Exclusion conditions If the F-V-S-N excludes the respondent from the residence, the police member who serves the F-V-S-N on the respondent must consider the accommodation needs of the respondent and any dependent children and take any reasonable steps to ensure those affected have access to temporary accommodation. 16 If the F-V-S-N does not include an exclusion condition, the police member must consider the accommodation needs of the protected person Page 4 and any dependent children and take any reasonable steps to ensure those affected have access to temporary accommodation. 17 There is no obligation on police members to provide free accommodation for those affected by a F-V-S-N. 18 (x) When does the F-V-S-N start and end? The F-V-S-N starts when it is served on the respondent. 19 The F-V-S-N ends when the court refuses to make either an interim or final family violence intervention order on the first mention date or, if the court makes a family violence intervention order on the first mention date, when the order is served on the respondent. 20 (xi) Breach of the F-V-S-N Breaching any condition of a F-V-S-N will be a criminal offence. The maximum penalty for this offence is a maximum of 240 penalty units and/or two years imprisonment. 21 A police officer may arrest a person without a warrant if the officer believes on reasonable grounds that the person has contravened a F-V-S-N. 22 This power of arrest without a warrant has been provided to provide further protection to the person protected by the F-V-S-N. (xii) Family Violence Intervention Orders prevail over F-V-S-Ns If a police member issues a F-V-S-N when there is a family violence intervention order on foot, then the family violence intervention order prevails. 23 (xiii) Safeguards on the F-V-S-N system The F-V-S-N system will be trialled and independently evaluated to determine whether it is providing an effective response to emergency family violence situations after hours. As a trial, it will sunset after two years unless the repeal provision is itself repealed. 24

5 Page 5 For further information Should you have any queries in respect of the new Act we invite you to contact: Kelly Graham on Principal Solicitor The VGSO is the primary source of legal services to the Victorian State Government and its statutory authorities, providing strategic advice and practical legal solutions. 1 It should be noted that many acts of family violence will constitute criminal offences under other legislation (for example the Crimes Act 1958 and the Summary Offences Act 1966) and will continue to be prosecuted, where appropriate, under other legislation and criminal penalties applied. In Victoria, there are currently no specific offences relating to the assault of a family member. 2 The term respondent replaces the old term defendant. 3 The term affected family member replaces the old term aggrieved family member. 4 Section Section Section Section Section Section 27(1)(b). 10 Section 27(2). 11 Section 27(3). 12 The types of conditions that may be included in a family violence intervention order are outlined in s Section 29(2). 14 Section Section Section 36(1). 17 Section 36(2). 18 Section 36(3). 19 Section 30(1)(a). 20 Section 30(1)(b). 21 Section Section Section Section 41.