Version No. 054
Crimes (Family Violence) Act 1987
Act No. 19/1987
Version incorporating amendments as at 12 December 2005
table of provisions
SectionPage
1
SectionPage
Part 1—Preliminary
1.Purpose
2.Commencement
3.Definitions
3A.Jurisdiction of Children's Court
Part 2—Intervention Orders
4.Intervention orders
4A.Additional protection of children
5.Restrictions in order
6.Duration of order
6A.Supreme Court—limitation of jurisdiction
7.Complaints for intervention orders
7A.Police complainants and police prosecutors
8.Interim intervention orders made in the absence of defendant
Part 2A—Counselling Orders
Division 1—Object and application of Part
8A.Object of Part
8B.Application of Part
Division 2—Orders to assess eligibility for and to attend counselling
8C.Order to assess eligibility for counselling
8D.Order to attend counselling
8E.Effect of appeal against intervention order
Division 3—Procedures relating to counselling orders
8F.Notice of hearings
8G.Approval of persons and of counselling
8H.Person giving report may be required to attend hearing
8I.Disputed report
8J.Explanation of counselling orders
8K.Variation or revocation of counselling orders
8L.Service of counselling orders, eligibility report etc.
8M.Substituted service
Division 4—Other matters
8N.Certificate of defendant's non-attendance
8O.Confidentiality of eligibility interview and report
8P.Confidentiality of counselling
8Q.Limited use of information by court
8R.Authorisation to collect health information
8S.Delegation
8T.Definition
Part 3—Procedures Relating to Intervention Orders
9.Warrant may issue on certain complaints
10.Complaint on oath if warrant to issue
11.Service of complaint
12.Procedure in the absence of the defendant
13.Procedure in third party complaints
13A.Rules of evidence not to apply in certain cases
14.Consent orders
14A.Repealed
15.Explanation of orders
16.Variation, revocation or extension of orders
16A.Additional protection of children in varying or revoking orders
17.Service of intervention orders
18.Repealed
18AA.Registration of interstate orders
18AAB.Registration of New Zealand orders
Part 4—Miscellaneous
18AB.Entry and search of premises
18A.Seizure of firearms
19.Bail on appearance to summons or on arrest
20.Appeal by defendant
21.Appeal by complainant
21A.Affidavit evidence
21B.Restriction on evidence by and presence of children
21C.Costs
21D.Concurrent criminal proceedings
22.Breach of an order
23.Arrest for breach of an order
24.Restriction on reports of proceedings involving children
25.Intervention order prevails over order under Children and Young Persons Act 1989
25A.Relationship with Family Court contact orders
25AB.Validation of certain orders
25B.Supreme Court—limitation of jurisdiction
26.Regulations
27.Transitional
28.Repealed
29.Transitional provision—Children and Young Persons (Age Jurisdiction) Act 2004
Part 5—Repealed
═══════════════
ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
1
Version No. 054
Crimes (Family Violence) Act 1987
Act No. 19/1987
Version incorporating amendments as at 12 December 2005
1
Crimes (Family Violence) Act 1987
Act No. 19/1987
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
S. 1 amendedby No. 77/2004 s.6.
1.Purpose
The main purposes of this Act are to provide for intervention orders and counselling orders in cases of family violence and to amend the Crimes Act 1958.
2.Commencement
This Act comes into operation on a day to be proclaimed.
S. 3
amended by No. 17/1990
s. 6(1)(a).
3.Definitions
(1)In this Act—
S. 3(1) def. of "aggrieved family member" substitutedby No. 77/2004 s.7(a).
"aggrieved family member" means the family member whose person or property is the subject of the complaint for, or is protected by, an intervention order or interim intervention order;
"assault" has the same meaning as in section 31 of the Crimes Act 1958;
S. 3(1) def. of "child" substituted by No. 17/1990
s. 4(1), amendedby No. 72/2004 s.34.
"child" means a person who is under the age of 18 years;
S. 3(1) def. of "clerk" amended by No. 17/1990
s. 5(1)(a), repealed by No. 57/1989
s. 3(Sch. item 44.1(a)).
*****
S. 3(1) def. of "counselling order"insertedby No. 77/2004 s.7(b).
"counselling order"means an order under section8C or 8D;
S. 3(1) def. of "Court'' amended by Nos 57/1989
s. 3(Sch. item 44.1(b)), 17/1990
s. 5(1)(b).
"Court" means, subject to section 3A, the Magistrates' Court;
S. 3(1) def. of "de facto spouse" repealedby No.27/2001 s.7(Sch.5 item1.1(a)).
*****
s. 3
S. 3(1) def. of "domestic partner" insertedby No.27/2001 s.7(Sch.5 item1.1(b)).
"domestic partner" of a person means an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—
(a)for fee or reward; or
(b)on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);
S. 3(1) def. of "family member" amended by Nos 17/1990
s. 6(1)(b), 95/1994 s. 8, 27/2001 s.7(Sch.5 item1.1(c)).
"family member", in relation to a person means—
(a)the spouse or domestic partner of that person; or
(ab)a person who has or has had an intimate personal relationship with that person; or
(b)a person who is or has been a relative of that person; or
(ba)a child who normally or regularly resides with that person; or
(bb)a child of whom that person is a guardian; or
s. 3
(c)another person who is or has been ordinarily a member of the household of that person;
S. 3(1) def. of "Family Violence Court Division" insertedby No. 77/2004 s.7(b).
"Family Violence Court Division" means the Family Violence Court Division of the Magistrates' Court;
S. 3(1) def. of "interstate summary protection order" inserted by No. 34/1992
s. 4(a).
"interstate summary protection order" means an order made under a law of another State or a Territory of the Commonwealth declared by Order of the Governor in Council published in the Government Gazette to be a law corresponding to section4;
S. 3(1) def. of "New Zealand protection order" inserted by No. 44/1997
s. 5.
"New Zealand protection order" means an order made under section 14 of the Domestic Violence Act 1995 of New Zealand;
S. 3(1) def. of "order" repealedby No. 77/2004 s.7(c).
*****
"parent", in relation to a child, includes a guardian of the child or a person with whom the child normally or regularly resides;
S. 3(1) def. of "party" insertedby No. 77/2004 s.7(b).
"party" to a proceeding under this Act includes, to avoid doubt, the defendant in the proceeding or the defendant the subject of an order made in the proceeding;
S. 3(1) def. of "principal registrar" inserted by No. 34/1992 s.4(b).
"principal registrar" means the principal registrar of the Magistrates' Court;
S. 3(1) def. of "property" inserted by No. 17/1990
s. 4(2).
"property", in relation to a family member, includes—
(a)property of any person situated in premises in which the family member lives or works; and
s. 3
(b)property of any person that is being used by the family member;
S. 3(1) def. of "registrar'' inserted by No. 57/1989
s. 3(Sch. item 44.1(c)) (as amended by No. 17/1990
s. 5(1)(c)).
"registrar" means a registrar of the Magistrates' Court or the Children's Court (as the case requires) and includes a deputy registrar of the Magistrates' Court or the Children's Court (as the case requires);
S. 3(1) def. of "Secretary" insertedby No. 77/2004 s.7(b).
"Secretary" means the Secretary to the Department of Justice;
S. 3(1) def. of "spouse" substitutedby No.27/2001 s.7(Sch.5 item1.1(d)).
"spouse" of a person means a person to whom the person is or was married;
S. 3(2) inserted by No. 17/1990
s. 6(2), amended by No.27/2001 s.7(Sch.5 item1.2).
(2)For the purposes of the definition of "family member" in sub-section (1), a relative, in relation to a person, means—
(a)a father, mother, grandfather, grandmother, step-father, step-mother, father-in-law or mother-in-law of that person; or
(b)a son, daughter, grandson, granddaughter, step-son, step-daughter, son-in-law or daughter-in-law of that person; or
s. 3
(c)a brother, sister, half-brother, half-sister, brother-in-law or sister-in-law of that person; or
(d)an uncle, aunt, uncle-in-law or aunt-in-law of that person; or
(e)a nephew or niece of that person; or
(f)a cousin of that person—
and includes, in the case of domestic partners, a person who would be such a relative if the domestic partners were married to each other.
S. 3(3) insertedby No.27/2001 s.7(Sch.5 item1.3).
(3)For the purposes of the definition of "domestic partner" in sub-section (1)—
(a)in determining whether persons are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 275(2) of the Property Law Act 1958 as may be relevant in a particular case;
(b)a person is not a domestic partner of another person only because they are co-tenants.
S. 3A
inserted by No. 17/1990
s. 5(2).
3A.Jurisdiction of Children's Court
s. 3A
S. 3A(1) amendedby No. 72/2004 s.35.
(1)If the aggrieved family member or the defendant is under the age of 18 years at the time the complaint or other application is made, the Family Division of the Children's Court and the Magistrates' Court each have jurisdiction under this Act with respect to the complaint or other application despite anything to the contrary in section 17 of the Children and Young Persons Act 1989.
(2)If a complaint or other application is made under this Act to the Magistrates' Court and the Magistrates' Court considers that, in all the circumstances of the case, the matter should be dealt with by the Children's Court, the Magistrates' Court may discontinue the proceeding and order that it be transferred to the Children's Court.
(3)If a complaint or other application is made under this Act to the Children's Court and the Children's Court considers that, in all the circumstances of the case, the matter should be dealt with by the Magistrates' Court, the Children's Court may discontinue the proceeding and order that it be transferred to the Magistrates' Court.
(4)A court has jurisdiction to revoke, vary or extend in accordance with this Act an order made under this Act by it or any other court.
s. 3A
S. 3A(5) insertedby No. 77/2004 s.8.
(5)In this section, "Magistrates' Court" includes the Family Violence Court Division.
______
Part 2—Intervention Orders
4.Intervention orders
s. 4
S. 4(1) amended by No. 57/1989
s. 3(Sch. item44.2).
(1)The Court may make an intervention order in respect of a person if satisfied on the balance of probabilities that—
(a)the person has assaulted a family member or caused damage to property of a family member and is likely to again assault the family member or cause damage to property of the family member; or
(b)the person has threatened to assault a family member or cause damage to property of a family member and is likely to assault the family member or cause damage to property of the family member; or
(c)the person has harassed or molested a family member or has behaved in an offensive manner towards a family member and is likely to do so again.
(2)The order may impose any restrictions or prohibitions on the person that appear necessary or desirable in the circumstances to the court.
S. 4(3) inserted by No. 44/1997
s. 6(1).
(3)An intervention order may be made in respect of more than one aggrieved family member if the court is satisfied in accordance with sub-section (1) in respect of each aggrieved family member.
Note to s. 4insertedby No. 77/2004 s.9.
Note:Part 3 sets out procedures relating to intervention orders.
S. 4Ainsertedby No. 77/2004 s.10.
4A.Additional protection of children
s. 4A
(1)In addition to the grounds in section 4(1) on which the Court may make an intervention order, the Court may make an intervention order under that section in respect of a child as an aggrieved family member if the Court is satisfied on the balance of probabilities that—
(a)the child has heard or witnessed, and islikely again to hear or witness, violence by a person as described in section4(1); and
(b)the child is a family member of that person or of the aggrieved family member whose person or property was the subject of the violence—
whether or not a complaint for an intervention order has also been made by or on behalf of the aggrieved family member whose person or property was the subject of the violence.
(2)Before making an intervention order under section4 (whether on the grounds in section4(1) or in sub-section (1) of this section), the Court must consider whether there are—
(a)any children; or
(b)in the case of an intervention order referred to in sub-section (1) of this section, any other children—
who are family members of the defendant or of the aggrieved family member who have been subjected to, or have heard or witnessed, violence by the defendant as described in section 4(1).
(3)If the Court is satisfied on the balance of probabilities that a child who is a family member of the defendant or of the aggrieved family member has been subjected to, or has heard or witnessed, violence by the defendant as described in section 4(1) and is likely again to be subjected to or to hear or witness such violence, the Court may (on its own initiative)—
(a)if the child's need for protection is substantially the same as that of the aggrieved family member, include the child as an aggrieved family member in making the order; or
(b)in any other case, make a separate intervention order under section 4 in respect of the child as an aggrieved family member.
s. 4A
(4)If the Court makes an intervention order in respect of a child as an aggrieved family member (including an intervention order referred to in sub-section (1) or (3) of this section), the Court must determine whether there are any orders in force under the Family Law Act 1975 of the Commonwealth in respect of the residence of the child or the defendant's contact with the child.
Note:If there is such an order in force, section68T of that Act may allow the court to vary, discharge or suspend that order.
(5)This section has effect despite anything to the contrary in section 4(1).
5.Restrictions in order
S. 5(1)amendedby No. 77/2004 s.11(1)(a)(b).
(1)Without limiting the generality ofsections 4 and 4A, an intervention order may do all or any of the following—
(a)prohibit or restrict approaches by the defendant to the aggrieved family member including prohibiting the defendant from approaching within a specified distance from the aggrieved family member; or
(b)prohibit or restrict access by the defendant to premises in which the aggrieved family member lives, works or frequents and such an order may be made whether or not the defendant has a legal or equitable interest in those premises;
(c)prohibit or restrict the defendant from being in a locality specified in the order;
(d)prohibit the defendant from contacting, harassing, threatening or intimidating the aggrieved family member;
(e)prohibit the defendant from damaging property of the aggrieved family member;
(f)prohibit the defendant from causing another person to engage in conduct restrained by the court;
s. 5
S. 5(1)(g)repealedby No. 77/2004 s.11(2).
*****
S. 5(1)(h) substituted by Nos 34/1992
s. 5(1), 66/1996 s.203(1).
(h)revoke any licence, permit or other authority to possess, carry or use firearms.
S. 5(1A) inserted by No. 66/1996 s.203(2).
(1A)If in an order under sub-section (1), a licence, permit or other authority to possess, carry or use firearms is revoked—
(a)the person in respect of whom the order is made is disqualified from obtaining any such licence, permit or authority during the course of the order and for a period of 5 years from the date of cessation of the order; and
(b)any firearm in the possession of the person must either be—
(i)forfeited to the Crown; or
(ii)disposed of by sale to a licensed firearms dealer, within the meaning of the Firearms Act 1996—
s. 5
as the Court directs.
S. 5(1B) inserted by No. 66/1996 s.203(2).
(1B)If a firearm is disposed of by sale under sub-section (1A)(b)(ii), the proceeds of the sale must be paid to the owner of the firearm.
S. 5(2)amendedby No. 77/2004 s.11(3).
(2)Before making an intervention order which restricts the defendant's access to any premises, the court must take into account—
(a)the need to ensure that the aggrieved family member is protected from violence; and
(b)the welfare of any children who may be affected by the order; and
(c)the accommodation needs of all persons who may be affected by the order—
and give paramount consideration to the matters in paragraph (a).
S. 5(3) inserted by No. 34/1992 s.5(2), amended by Nos 66/1996 s.203(3), 44/1997 s.11.
(3)Despite anything to the contrary in the Firearms Act 1996, an order under sub-section (1)(h) takes effect when it is made and no appeal lies under that Act against an order made under this Act.
S. 6
amended by No. 95/1994
s. 9(1), substituted by No. 44/1997 s.7.
6.Duration of order
s. 6
(1)The Court may specify in an intervention order a period for which the order is to remain in force.
(2)An intervention order remains in force—
(a)for the period (if any) specified by the court under sub-section (1), unless it is sooner revoked by the court or reversed or set aside on appeal; or
(b)if no period is specified in the order, until it is revoked by the court or reversed or set aside on appeal.
(3)An intervention order made on or after 23 January 1995 is not, and must be taken never to have been, invalid only because it did not specify a period for which it was to remain in force.
(4)Nothing in sub-section (3) affects the rights of the parties in any proceeding for breach of an intervention order that was dismissed before the commencement of section 7 of the Law and Justice Amendment Act 1997 on the ground that the order was invalid because no period was specified in it for which it was to remain in force.
S. 6A
inserted by No. 44/1997 s.7.
6A.Supreme Court—limitation of jurisdiction
It is the intention of section 6(3) to alter or vary section 85 of the Constitution Act 1975.
S. 7
amended by No. 17/1990
s. 7(1)(a).
7.Complaints for intervention orders
(1)A complaint for an intervention order may be made by—
(a)a member of the police force; or
(b)the aggrieved family member; or
(c)if the aggrieved family member is a child—
(i)a member of the police force; or
(ii)a parent of the child; or
S. 7(1)(c)(iii) amended by No. 17/1990
s. 7(1)(b).
(iii)any other person with the written consent of a parent of the child or with the leave of the court; or
S. 7(1)(c)(iv) inserted by No. 17/1990
s. 7(1)(c).
(iv)the aggrieved family member with the leave of the court if he or she is of or above the age of 14 years; or
S. 7(1)(d) amended by Nos 17/1990
s. 7(1)(d), 72/2004 s.36.
(d)any other person, with the written consent of the aggrieved family member if the aggrieved family member is of or above the age of 18years; or
S. 7(1)(e) inserted by No. 17/1990
s. 7(1)(e), amended by No. 52/1998
s. 311(Sch. 1 item 18).
(e)if a guardianship order under the Guardianship and Administration Act 1986 is in force in respect of the aggrieved family member, by the guardian appointed under that Act, or with the leave of the court, by any other person.
S. 7(2) inserted by No. 17/1990
s. 7(2).
(2)If an application for leave is made under sub-section (1)(c)(iii) or (e), the court must grant leave if it is satisfied that it is in the best interests of the aggrieved family member to do so.
s. 7
S. 7(3) inserted by No. 17/1990
s. 7(2).
(3)If an application for leave is made under sub-section (1)(c)(iv), the court must not grant leave unless it is satisfied that the child understands the nature and consequences of an intervention order.
S. 7(4) inserted by No. 44/1997
s. 6(2).
(4)A complaint in respect of an aggrieved family member who is a child may be included in a complaint in respect of the child's parent if the complaints arise out of the same or similar circumstances.
S. 7(5) inserted by No. 44/1997
s. 6(2).
(5)A complaint referred to in sub-section (4) may, on the application of the complainant or the defendant, be heard separately if the court thinks fit.