Australia: Navigating specialist family violence court interventions: From undertakings to mandatory counselling orders and the costs of criminalising behaviour carrying other [un]intended consequences.

Specialist Family Violence Courts are now gazetted at 12 Magistrates' Court locations,¹ with 2 more proposed by 2025. This expansion is amongst the 227 recommendations implemented since the Royal Commission into Family Violence. It means a lot more, often persuasive reasons for Respondents to concede to an application for a family violence intervention order at the outset. Maya George writes about 5 reasons to contest.

We are often approached by clients charged with criminal offences who have consented to interim or final Family Violence Intervention Orders ('FVIO') who begin learning of the many consequences which flow from that decision. They often recount how they initially protested against the making of an FVIO, how they denied the allegations, and how ultimately the matter resolved by consent without admissions, as the most expeditious or convenient route. The interests of expediency and convenience are seldom what they seem.

Reasons to Contest

Reason Number 1: Where an Appropriate Resolution is Not Available

The Elusive Undertaking

The most appropriate resolution to a matter may be an option not mentioned anywhere in the Family Violence Protection Act 2004 (Vic). It might be on the same terms and conditions as a FVIO. It is also by consent and agreement as to appropriate conditions, including the prohibition on committing family violence. Resolutions by way of undertakings require formal negotiations conducted through legal representatives, especially where there is an interim FVIO in place.

The Applicant can decide which conditions are appropriate and Respondent is required to make a promise to the Court it will not breach those conditions. The nature of this agreement is much closer to Orders by consent than where a Respondent reluctantly consents without admissions to a final FVIO for the sake of expedience.

An Affected Family Member's ('AFM') engagement in this process, through setting the terms (if any) of contact and dictating other conditions as they deem appropriate and seeking agreement through a signed undertaking and promise to the Court, may provide an AFM with the autonomy to resolve matters without the need for police intervention. Other times, it may be that the current application cannot be substantiated, and an undertaking is an interim solution where any breaches of the undertaking can form the evidentiary basis for a subsequent FVIO application. For cross-applications, it offers a resolution to both Applications by way of mutual undertakings.

Where the Applicant is a member of police, the scope for this resolution is limited. Victoria Police will often state that they do not, as a matter of policy, accept undertakings. Why would they?

An undertaking is a Respondent's promise to the Court, which usurps police involvement in the matter. A breach of an undertaking is not enforceable by police and does not, without more, result in criminal proceedings. Its recourse is to provide a right of reinstatement of the Application.

For an affected person, it would work as evidentiary support for a subsequent intervention order. It doesn't offer the same to Police Applicants, who can rely on the initial report which remains relevant – in the narrative of subsequent applications, in their risk assessments or in any other intervention order proceedings involving a report with the same Respondent. The limitations on leading tendency evidence do not apply. Evidence that a Respondent has a tendency to act in a certain way is considered relevant, probative, and admissible.

Reason Number 2: Put the Allegations to Proof

Where an AFM is the Applicant, they are not obliged to give evidence before the court makes an interim order.² In these circumstances, an application can be made by declaration of truth, without requirements to be witnessed or executed before any other person. The rigour of the evidence or lack thereof is enough for a Court to make an interim FVIO without the Respondent being notified.³

Where family violence is alleged on the basis of controlling behaviour, emotional, psychological, or even economic abuse, this often comprises of patterns of behaviour described vaguely without any further particulars to be refuted. Allegations often span across long-term and are described in a way that does not arm you with any specificity required to run an appropriate defence.

Progressing your matter to a Directions Hearing, and seeking Orders from the Court that there further and better particulars to be filed, can place you in a better position to assess the strength of the allegations, by confining the issues to particular dates, places, and instances. You are then entitled to provide a response to those allegations, confining the issues in dispute making concessions where necessary.

At a Directions Hearing, the Court and the parties then turn their mind to potential witnesses to call at a contested hearing. In the family violence context where matters occur in private, it may well mean a Respondent will be called to give evidence.

At a contested hearing for a FVIO Application, the Court "may inform itself in any way it thinks fit, despite any rules of evidence to the contrary".⁴ Different rules of evidence and standards of proof apply, and certain evidence can be lead which would be disallowed in criminal law proceedings. It means that a Police applicant can provide hearsay evidence on behalf of the complainant and a parent Applicant can give hearsay evidence on behalf of the child. It does not, however, mean that rights to natural justice and procedural fairness are abrogated.⁵

Reason Number 3: Criminal Liability

Where false allegations are validated, it can embolden complainants to concoct breaches in the future or otherwise use the potential for criminal charges for an advantage. A Respondent can be left awaiting the inevitability of being charged with a criminal offence, for example, where breaches have occurred but remain unreported.

A social media post during the operational period of a FVIO, such as a selfie with a protected child, may be held in obeyance until such time as the AFM makes a report to Police and the Respondent is then charged.

Another example is where a protected person initially encourages or permits conduct that places the Respondent in breach under the guise of promises not to involve the police. What seemed like a mutual decision to ignore the existence of an order becomes a liability flowing one way – as a protected person is exempt from liability in such circumstance.⁶

Amorphous Nature of Prohibitions

Victoria's Highest Appellate Court recently commented on the broad "range of moral culpability embraced" by the prohibition against a person committing 'family violence' when compared to the "potentially significant" consequences for a person charged with a contravention.⁷ Justices Emerton and Osborn described this consequence as unfortunate, with Justice Forrest observing:⁸

This seriousness is reflected in the consideration of family violence matters as distinct from other criminal offences which attract the same or higher maximum penalties.

Access to Criminal Justice Diversions are more onerous for family violence matters, at both stages of approval under section 59 of the Criminal Procedure Act (Vic). At the prosecution level, if consent is not refused at the outset, it requires satisfaction that 'exceptional circumstances' exist.

Where such consent is given, it has been the experience of defence practitioners that family violence diversions are more rigorously case managed before a Magistrate approves the diversion.

Reason Number 4: [Un] intended Consequences

4.1 Mandatory Counselling

The Specialist Family Violence Court is empowered to make counselling orders under Part 5 of the Family Violence Protection Act 2008 (Vic) – which involves many months of counselling for family violence offenders through group sessions, reflections, and education.

This format of counselling, often through sharing in group sessions, requires acknowledgement that their behaviour at least resembles what was alleged. The effectiveness of such programs is often reliant on such engagement.

One might expect that despite the implementation of recommendations expanding the service providers of Court Mandated Counselling Order Programs, that the volume of Orders made would begin to overcome the availability of programs. Upon making a final FVIO, the Magistrate must make an order for an eligibility assessment, which involves a family violence practitioner interviewing a Respondent, followed by the making of an order expressed in mandatory terms.

It is heartening to see an increase in the Court exercising its discretion to not make such orders where it satisfied that it is not appropriate in all of the circumstances of the case.⁹

4.2 Family Court

The existence of family court proceedings is an important consideration when deciding whether to contest an FVIO Application. Interim parenting orders can secure contact with children and allow for custody arrangements to be organised whilst you contend with the allegations.

The family violence jurisdiction is not the forum to ventilate custody issues – particularly for a Respondent. If nothing else, that the Act provides jurisdiction for the Magistrates' Court to revive, vary, discharge, or suspend a parenting order pursuant to the Family Law Act 1975 (Cth),¹⁰ should be sufficient for you to pursue the matter in the appropriate jurisdiction of the Federal Circuit and Family Court of Australia.

That jurisdiction does not take kindly to allegations of family violence either. The presumption in favour of equal shared parental responsibility¹¹ does not apply if there are reasonable grounds to believe that a parent has engaged in family violence. In determining what is in a child's best interest,¹² the Family Law Act 1975 (Cth) balances two primary considerations – the benefit to the child of having meaningful relationships with both parents; and the need to protect the child from, inter alia, exposure to family violence.

4.3 DHHS/ DFFH

If children were exposed to alleged family violence, the Police Applicant is required in their risk assessment to notify the Department of Families Fairness and Housing ('the Department') who can inform police of their attitude to certain conditions. The Police can maintain its position, despite the lack of support from the affected family member, where the Department continues to hold concerns. This is despite the Department being empowered to initiate proceedings for the protection of the child.

4.4 Firearm Licenses

The Act empowers police to search, without a warrant, any premises where a Respondent resides or where family violence is alleged to have been committed, and vehicles in the Respondent's name.¹³ Police can direct that firearm be immediately surrendered. The Court can otherwise include a condition suspending or cancelling firearm's authority. For more on firearms and prohibited person applications see here.

Reason Number 5: On Principle

Contesting on principle is no easy feat. It means the undesirable consequences are absorbed in the short term and requires placing a great deal of faith in the system which was not designed with Respondent's interests at the forefront of its considerations.

Where an Application rises to the degree in which the allegations are "so [...] manifestly groundless as to be utterly hopeless",¹⁴ appropriate remedies might be available.

Strikeout Application and Cost Orders

Regulation 6.02 of the Magistrates' Court (Family Violence Protection) Rules 2008 (Vic)¹⁵ empowers a Magistrate to strikeout an application if the proceeding falls under subsections (a)-(c),¹⁶ including where the application is frivolous or vexatious or otherwise an abuse of court process. What amounts to "abuse of court process" has been said to be "insusceptible of closed categories",¹⁷ nonetheless it usually entails where the Court's process is being invoked for an illegitimate or collateral purpose; the use of its procedures is unjustifiably oppressive; or it brings the administration of justice into disrepute.

It is not an application made lightly as it requires a very high threshold for satisfaction. Satisfaction of the Court can also enliven exceptions to the general rule that each party bears its own costs, where an application is vexatious or made in bad faith.¹⁸

As a Respondent, consenting to a Final Order can make matters very difficult. An application for variation or revocation after an order is made is subject to additional hurdles for Respondents compared to the same application by the Applicant.¹⁹

Navigating this jurisdiction requires specialist advice.

Footnotes

¹ Shepparton, Ballarat, Moorabbin, Heidelberg, Frankston, Melbourne, Broadmeadows, Dandenong, Geelong, Latrobe Valley, Ringwood and Sunshine.

² Family Violence Protection Act 2008 (Vic) ('FVPA') s 55(2).

³ FVPA, s 54.

⁴ FVPA s 65.

⁵ YY v ZZ & Anor [2013] VSC 743 [79].

⁶ FVPA s 125.

⁷ DPP v Cormick [2023] VSCA 186 [87].

⁸ DPP v Cormick [2023] VSCA 186 [111] (T Forrest JA).

⁹ FVPA 2008 (Vic) s 130.

¹⁰ Family Law Act 1975 (Cth) s 68R.

¹¹ Family Law Act 1975 (Cth) s 61DA.

¹² Family Law Act 1975 (Cth) s 60CC.

¹³ Family Law Act 1975 (Cth) s 159A.

¹⁴ Attorney-General v Wentworth [1988] 14 NSWLR 481 [491].

¹⁵ Magistrates' Court (Family Violence Protection) Rules 2008 (Vic) r 6.02.

¹⁶ Magistrates' Court (Family Violence Protection) Rules 2008 (Vic) r 6.02(a), (c).

¹⁷ Motavalli v Jones [2023] VCC 1222 [39].

¹⁸ FVPA, s 154(3).

¹⁹ FVPA, s 109.