ByLawyers News and Updates

Intervention orders – VIC

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Following a recent Supreme Court decision, a declaration of truth is not sufficient evidence on which a court can make personal safety intervention orders.

Section 38 of the Personal Safety Intervention Orders Act 2010 provides that an application for an interim order must be supported by oral evidence or an affidavit, unless the orders are by consent or the requirement is waived.

Under s 38(1A) the court may waive the requirement that the application be supported by oral evidence or an affidavit if the applicant is a police officer and the application is made by electronic communication:

  • provided the court has considered whether it is practicable to obtain oral evidence or an affidavit before making the interim order; or
  • the application is made before 9 a.m. or after 5 p.m. on a weekday or on a Saturday, Sunday or a public holiday, and it was certified by the police officer in accordance with s 13(2).

As a COVID-19 response in 2022, the Magistrates’ Court introduced a declaration of truth form as part of the online application process for intervention orders.

In Myers v Satheeskumar & Ors (Judicial Review) [2024] VSC 12 the applicant challenged the validity of an interim intervention order on the basis that it was not supported by oral evidence or an affidavit, there being no consent and no waiver. The Supreme Court agreed with the applicant, finding that a declaration of truth is not the same as an affidavit and cannot ground an application for interim orders. In doing so, the the presiding judge noted:

I have concluded that the interim PSIOs are invalid, in spite of the public inconvenience and safety issues entailed by this conclusion. I am conscious that this conclusion could cast doubt on the validity of other interim PSIOs granted in similar circumstances. It may be a matter of urgent public concern if other interim PSIOs are subject to doubt by reason of any systematic defect in the manner they have been granted. It is unclear to me whether the approach of the Magistrates’ Court to this case is widespread. However that may be, any perceived solution must be left to the legislature, not the Court.

It is likely that the Magistrates’ Court will soon amend their form and online application to require an affidavit to be filed. There may also be a legislative response. However, until that happens, an application for an interim order cannot be supported by a declaration of truth, and unless a waiver applies the applicant will need to either give evidence or file an affidavit before the court can make any interim orders.

The commentary in the By Lawyers Intervention Orders (VIC) publication has been updated accordingly, and will be updated again if there are further developments.

Intervention orders – VIC

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Appeals against intervention orders made by magistrates are no longer considered de novo hearings, following a recent Supreme Court case.

Previously, appeals to the County Court under both the Personal Safety Intervention Orders Act 2010 and the Family Violence Protection Act 2008 were conducted as hearings de novo.  That is, the County Court conducted the trial of the application for an intervention order afresh and gave a decision based on the evidence before it. This meant the parties had to give their evidence and be cross-examined again.

In AAA v County Court of Victoria [2023] VSC 13 the Supreme Court held that an appeal to the County Court against an intervention order, or a refusal to make an order, is not an appeal de novo. It is a broad appeal by rehearing that allows for new evidence. It is not a hearing in which the applicant begins again with the magistrate’s decision being disregarded. The parties may adduce new evidence on appeal, but are not required to.  The County Court determines the appeal based on both the evidence at first instance and any new evidence before it.  The court’s task on appeal is to identify factual, legal, or discretionary error in light of all of the evidence before the court, including any new evidence.

Whilst the focus is on the identification of error, the error may be a factual one. As the County Court reconsiders the application, the error may be that the magistrate made erroneous findings of fact on the evidence available, or reached an erroneous conclusion on the ultimate question of whether the statutory criteria for making the order are satisfied.  Further, as the County Court determines the appeal at the time of the appeal, and new evidence may be adduced, it is not necessary to establish that the magistrate made an error based on the evidence before them at the time. It is open to the County Court to find error even if, had it been limited to the evidence before the magistrate, it would have reached the same conclusion as the magistrate.

The decision suggests that the conduct of final hearings in intervention order matters in the Magistrates’ Court will now be open to close examination and scrutiny on appeal.

The commentary in the By Lawyers Intervention Order (VIC) guide has been updated accordingly.

COVID Recovery – VIC

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Practice Direction No. 3 of 2022 – COVID recovery currently applies to all types of matters in the Magistrates’ Court of Victoria. It overrides any other directions to the extent of any inconsistency.

In general, remote appearances by clients and practitioners are available, encouraged, and in some cases required. However, physical appearances are also possible, mainly by request, and in some cases required.

The practice direction sets out detailed special arrangements for all types of appearances, including:

  • accused on bail or summons;
  • bail applications and other hearings with the accused in custody;
  • criminal mentions and applications;
  • Specialist courts and programs;
  • intervention orders – applications and hearings;
  • civil hearings including oral examinations;
  • counter services.

In some instances it is necessary for practitioners to email the court and request permission to make a physical appearance in a matter.

The By Lawyers commentaries in all publications involving the Magistrates’ Court have been updated with a link to the practice direction.

  • Magistrates’ Court – Criminal
  • Intervention Orders
  • Traffic Offences
  • Magistrates’ Court Civil – Act for the plaintiff
  • Magistrates’ Court Civil – Act for the defendant
  • Enforcement

These COVID recovery arrangements under the practice direction continue indefinitely at this stage.

Criminal procedure – VIC

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Criminal procedure amendments enacted by the Justice Legislation Amendment (Criminal Procedure and Other Matters) Act 2022 have commenced. Further amendments are pending.

Amendments include:

Prosecution disclosure obligations

Section 41 Criminal Procedure Act 2009 sets out what must be provided in a full brief.  This includes any information, document, or thing on which the prosecution intends to rely at the hearing. The section has been amended to require the prosecution to now include in the brief any information relevant to the credibility of a prosecution witness, including their criminal record if any.

The informant, usually a police officer, also has an ongoing duty of disclosure to the Director of Public Prosecutions where that office is conducting the prosecution. The informant must provide to the DPP any information, document, or thing that is in the possession of, or known by, the informant that is relevant to the alleged offence, subject to any claims for statutory privilege or public interest immunity.

An amendment yet to commence requires detailed disclosure certificates to be prepared by the prosecution to ensure compliance with these disclosure requirements. There are associated tweaks to the pre-trial procedure to accommodate them. These amendments are awaiting proclamation, but have a default commencement date of 1 October 2022.

Remote evidence

The criminal procedure amendments introduce an obligation on the court to direct that the evidence of a witness be given remotely if the witness is a complainant in a proceeding that relates to an offence that constitutes family violence within the meaning of the Family Violence Protection Act 2008. This applies if closed-circuit television or other facilities that enable communication between the courtroom and another place are available and it is practicable to do so.

Appeals

Where the Magistrates’ Court in any given matter is constituted by the Chief Magistrate who is a dual commission holder, meaning also a Supreme Court judge, appeals are now to the Court of Appeal.

Intervention Orders

Declarations of truth are now available for applicants commencing applications for personal safety intervention orders. This is in addition to oaths, affirmations, and affidavits. Declarations of truth were already available for family violence applications.

Under both Acts, special rules apply for the cross-examination of affected family members and children. The amendments have effectively made remote evidence the default position for protected witnesses, which includes children and close family members of the accused. See s 69 (1A) of the Family Violence Protection Act 2008 and ss 49 and 52 of the Personal Safety Intervention Orders Act 2010.

Publication updates

These changes have been reflected as required in the By Lawyers Magistrates’ Court – Criminal publication. When the additional amendments commence our publications will be further updated.

New rules for IVOs – VIC

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There are new rules for IVOs in the Magistrates’ Court. The Magistrates’ Court (Personal Safety Intervention Orders) Rules 2021 commenced on 29 August 2021.

Intervention orders are made in the Magistrates’ Court under either the Family Violence Protection Act 2008 or the Personal Safety Intervention Orders Act 2010.

The Magistrates’ Court (Personal Safety Intervention Orders) Rules 2021 and the Magistrates’ Court (Family Violence Protection) Rules 2018 provide for the practice and procedure in all proceedings under the respective Acts, including service, orders, subpoenas, affidavits and hearings. The two sets of rules are largely uniform and therefore procedure under both Acts is essentially the same.

The new rules for IVOs revoke and replace these previous rules:

  • Magistrates’ Court (Family Violence Protection) Rules 2008;
  • Magistrates’ Court (Family Violence Protection Rules) (Amendment No. 1) Rules 2011;
  • Magistrates’ Court (Vexatious Proceedings Amendments) Rules 2014;
  • Magistrates’ Court (Family Violence Protection) Amendment Rules 2017;
  • Magistrates’ Court (Family Violence Protection) Amendment Rules 2018.

The By Lawyers Intervention orders commentary has been updated with links to the new rules. The specialist Intervention orders guide is part of the Criminal – Magistrates Court publication.

Amendments to domestic violence law – SA

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Recent amendments to domestic violence law have commenced in South Australia. They are contained within the Statutes Amendment (Domestic Violence) Act 2018.

Variation of interim orders

The new s 26A of the Intervention Orders (Prevention of Abuse) Act 2009 enables an applicant to apply to the court to vary an interim order issued by police.

Where such an application is made the court must hold a preliminary hearing as soon as practicable and without summoning the respondent to appear. An application can be made by telephone or other electronic means, and the preliminary hearing may occur by oral questioning of the applicant and any other available witness, or by other means contemplated by the rules including affidavit evidence. If the court thinks it appropriate, it may adjourn the hearing so the applicant can attend for questioning.

At the preliminary hearing, the court may:

  • issue an interim variation of the intervention order if it appears to the court that there are grounds for issuing the variation; or
  • determine that the application should be dealt with under s 26 without the issuing of any interim variation order; or
  • dismiss the application on any ground considered sufficient by the court.

Any interim variation issued by the court must require the defendant to appear before the court within eight days.

An interim variation of an intervention order issued by the court comes into force against the defendant when:

  • the order is served on the defendant personally; or
  • the order is served on the defendant in some other manner authorised by the court;
  • the defendant is present in the court when the order is made.

Admissibility of recorded evidence

Pursuant to the new s 13BB of the Evidence Act 1929 and the new s 28A of the Intervention Orders (Prevention of Abuse) Act 2009, the applicant, or someone else for whose protection an intervention order is sought, may give evidence via a recording. Section 28A applies in addition to, and does not derogate from, any other power of the court to receive evidence or to determine the form in which evidence may be received, including evidence in the form of a recording.

Domestic violence strangulation offence

The new s 20A of the Criminal Law Consolidation Act 1935 introduces a specific domestic violence strangulation offence—namely, choking, suffocating or strangling a person without consent with whom the offender is, or was, in a relationship. The maximum penalty for the offence is seven years imprisonment.

Amendment to publications

These amendments to domestic violence law have been incorporated into the commentary in the By Lawyers Intervention Orders guide for South Australia.

Online applications for intervention orders – VIC

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Online applications for intervention orders are now available for family violence related matters, via the Magistrates’ Court website.

Amendments to the Family Violence Protection Act 2008 which commenced on 31 July 2019 allow an applicant to apply online, instead of attending in person at a police station or magistrates  court. Online applications for intervention orders take about 15 minutes to complete. They can be saved, amended and lodged at any time within 4 weeks of being started.

Police can also make the online application on someone’s behalf.

There is no requirement for the application to be sworn or witnessed. Rather, when completing the online application the applicant must make a declaration of truth as to the contents of the application. Making a deliberately false declaration of truth is an offence carrying serious penalties – up to 600 penalty units and 5 years imprisonment. The applicant must also acknowledge their understanding of that offence and those penalties when completing the application.

When deciding whether to make an interim order based on an online application, the Magistrates’ Court can waive the requirement that the application be supported by oral evidence or an affidavit. Before waiving the requirement the court must consider whether it is practicable to obtain oral evidence or an affidavit before the order is made.

The By Lawyers guide Intervention Orders (VIC) has been updated to cover online applications for intervention orders. This publication is located in the By Lawyers Criminal – Magistrates’ Court guide.

Assistance for potential applicants and background information on the new process is available from the Neighbourhood Justice Centre via the Magistrates’ Court website.

Intervention orders – Domestic Violence Disclosure Scheme – South Australia

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Under a trial of a new Domestic Violence Disclosure Scheme which commenced on 2 October 2018, a person who may be at risk of domestic violence is now able to get information about their partner or former partner, to help make decisions about their safety and the future of the relationship.

A request for information can be made by either the person who is feeling unsafe in their relationship or a person concerned about the welfare of someone they know.

Such information might include any convictions the partner or former partner has for relevant offences, any relevant reports made to police and any charges or current and historical intervention orders. This information will be passed on to a specialist domestic and family violence worker, who will contact the applicant to arrange a meeting.

A request for information can be made online or at any local police station. Applicants will be required to undertake not to spread, publish or misuse such information.

It is untested at this stage whether, or to what extent, information disclosed could be used in an affidavit or other evidence seeking an interim or final intervention order. It would appear that possession of such information would constitute a legitimate forensic purpose for the issue a subpoena to Police covering the relevant material, if an applicant seeks to rely upon such information.

When acting for a defendant, it is important to explain that future partners, or third parties on their behalf, may have the ability to access information about current or historical intervention orders under the Domestic Violence Disclosure Scheme.

The By Lawyers Intervention Orders (SA) Guide has been updated to include commentary on the disclosure scheme and developments as to its application in practice will be monitored.

New podcast – Domestic Violence update

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An update on the national enforcement scheme and domestic violence leave

The last week of July marked White Ribbon Night, an important date for raising awareness of the issues faced by victims of domestic violence.

Join LEAP’s National Marketing Manager, Claire James and By Lawyers Senior Consultant and Editor Brad Watts for a discussion on domestic violence laws across Australia.

The podcast discusses the National Recognition Scheme for Domestic Violence Orders and the new entitlement to domestic violence leave under Modern Awards.

Recent updates to the By Lawyers Domestic Violence and Employment Law Guides are highlighted.

White Ribbon Australia is an organisation that promotes the prevention of violence against women in Australia by engaging men to make women’s safety a man’s issue too.

 

VIC – Intervention orders – Relationship with bail conditions

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The By Lawyers commentaries have been updated to deal with recent amendments to the Family Violence Protection Act 2008 by the Bail Amendment (Stage One) Bill 2017.

These changes, regarding the relationship between bail conditions, safety notices and intervention orders, are now covered in the VIC Criminal Magistrates’ Court Commentary and the Intervention Orders Commentary.

 

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