Counselling Orders in Family Violence Intervention Order Matters (Vic)

Family violence in Victoria (and nationally) has increased dramatically over the past several years. The courts have had to implement various strategies and mechanisms to deal with the number of family violence matters coming through, particularly intervention order matters. This article deals with the changes to how Family Violence Intervention Order matters are dealt with, including the introduction of Specialist Family Violence Courts and the requirement that Counselling Orders are imposed.

Legislation

The Family Violence Protection Act 2008, is the overarching legislation that sets the parameters for how Family Violence Intervention Order matters are dealt with in Victoria.

Specialist Family Violence Court

In the 2020/2021 financial year, there was a total of 41,512 Family Violence Intervention Order matters dealt with by the Magistrates Court, which was an increase of 2,427 from the year prior. The Magistrates Court subsequently implemented a Pilot Program which amongst other things, implemented the Specialist Family Violence Court Division. Currently the Family Violence Specialist Courts operate out of Shepparton, Ballarat, Moorabbin, Heidelberg and Frankston.

Magistrates at a Specialist Family Violence Court are specifically trained to hear family violence matters, as well as have the ability to make Counselling Orders (outlined further below). In addition to the magistrate, the Specialist Family Violence Courts also have:

1. registrars who are specifically trained in Family Violence matters;
2. a family violence support practitioner (for both applicant and respondent) who can provide referrals to community support agencies, as well as various other outreach support workers.

Counselling Orders

When a Final Family Violence Intervention Order is made before a Specialist Family Violence Court, under Section 129 of the Family Violence Protection Act 2008, the magistrate must make a Counselling Order. This is an order requiring:

1. that a counselling assessor provide the court with a report as to the Respondent’s eligibility to attend approved counselling to address the substance of the initial Family Violence Intervention Order; and
2. that the Respondent attend this interview with the counselling assessor, for the purpose of the report.

For matters that are heard at the Specialist Family Violence Court locations (Shepparton, Ballarat, Moorabbin, Heidelberg and Frankston), this usually requires the Respondent to attend an eligibility assessment for a Men’s behaviour Change Program (and subsequently complete the program if eligible). Courts that are not Specialist Family Violence Courts will usually direct an individual to make contact with the Men’s Referral Service for a referral into a Men’s Behaviour Change Program.

The eligibility assessments vary from organisation to organisation, however, the assessor will look at aspects such as:

1. the Respondent’s personal history;
2. any physical/intellectual disabilities which would affect engagement;
3. any drug or alcohol addiction issues; and
4. any other risk factors.

Breaching a Counselling Order

Counselling Orders are formal court orders. The condition that a Respondent attends for an eligibility assessment will normally also form part of the conditions of the Intervention Order that has been put in place. As such, there are very serious ramifications for breaching this condition.

Under Section 129(5) of the Family Violence Protection Act 2008, a respondent who fails to attend an interview without a reasonable excuse is guilty of an offence punishable by a fine of 10 penalty units.

The person could also be charged with the separate offence of breaching an intervention order under section 123 of the Family Violence Protection Act. This is a much more serious offence, which carries a maximum penalty of a fine of 240 penalty units and/or two years imprisonment.

Situations where Counselling Orders are not to be made

Under Section 129(2)(b) of the Family Violence Protection Act 2008, there is an exception to the rule that a Counselling Order must be made if a final Family Violence Intervention Order is made. If the magistrate is satisfied of the following, they do not have to make a Counselling Order:

1. There is no approved counselling that is reasonably practicable for the Respondent to attend to; or
2. In all the circumstances of the matter, it is not appropriate to make a Counselling Order.

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