Ordered that second-reading speech be incorporated into Hansard on motion of Ms TIERNEY (Minister for Training and Skills).
Ms TIERNEY (Minister for Training and Skills) — I move:
That the bill be now read a second time.
Incorporated speech as follows:
Family violence is our number one law and order issue. More than 78 012 family incidents were reported to Victoria Police in 2015–16, a figure which has increased by over 45.3 per cent since 2012.
All governments have a responsibility to put an end to family violence. The Victorian government is doing everything we can to protect the safety and wellbeing of women and children. It is why the government established Australia’s first Royal Commission into Family Violence and is implementing all of its 227 recommendations. Ending Family Violence: Victoria’s Plan for Change details how the government will deliver these recommendations, and build a new system that protects victims, holds perpetrators to account, and changes community attitudes.
The Family Violence Protection Amendment Bill 2017 (the bill) responds to a number of royal commission recommendations, which aim to improve the operation of the system of family violence safety notices and intervention orders, and the response of the justice system to family violence. The amendments in the bill include streamlining the process for serving family violence intervention orders, promoting the protection of children, measures to prevent respondents abusing the intervention order appeal process, and allowing recorded evidence to be used in some proceedings for family violence offences.
The bill also responds to a recommendation of the royal commission to strengthen the leadership role of local government in preventing and responding to family violence.
Finally, the bill amends the Family Violence Protection Act 2008 to streamline the administrative arrangements for counselling orders made under that act, and the Coroners Act 2008 to allow coroners to publish information about family violence intervention orders and proceedings.
Fourteen-day family violence safety notices
Family violence safety notices are issued by police officers and provide short-term protection for victims of family violence. They also act as an application for a family violence intervention order and a summons for the respondent to attend court on the first mention date for the application.
Currently, the first mention date for an application commenced by a family violence safety notice must be within five working days of when the notice is served on the respondent. If a notice includes a condition excluding the respondent from the protected person’s residence (an exclusion condition), the first mention date must be as soon as practicable within that five-day period.
The royal commission observed that police-initiated applications that are brought to court very quickly can have a detrimental effect on both the capacity of victims to decide what they want to do and the accountability of perpetrators. It recommended increasing the period within which the first mention date must occur from five working days to 14 calendar days.
The bill implements this recommendation, providing that the first mention date for an application commenced by a family violence safety notice must be within 14 days of the respondent being served with the notice. It also provides that if a family violence safety notice includes an exclusion condition the first mention date must be as soon as practicable within the 14-day period where the police officer who applied for the notice believes that the respondent may not have access to temporary accommodation. This intends to better target the existing requirement regarding the first mention date for family violence safety notices including an exclusion condition.
The aim of the royal commission’s recommendation is to ensure that police applications are fully investigated and the parties properly informed before the application is considered, so there are fewer adjournments and the first encounter with the court is as meaningful and productive as possible. The commission sought to balance the need to ensure the safety of victims at high risk of harm against the risk of harm to the victim arising from protracted or poorly prepared family violence intervention order proceedings.
Rebuttable presumption that children are protected by family violence intervention orders
Family violence has serious short and long-term impacts on the health and wellbeing of children; there is no known safe level of exposure to such violence. The Family Violence Protection Act recognises this, with its comprehensive definition of family violence, which includes behaviour that causes a child to hear or witness, or otherwise be exposed to the effects of, family violence, and other special provisions for children.
Children are often present when their mothers suffer family violence. However, the royal commission found disparities between the number of family violence incidents attended by police at which children are present, the number of children recorded by police as affected family members, and the number of children listed on original family violence intervention order applications. It was of the view that not all children are being considered for protection by an order.
In response, the royal commission recommended establishing a rebuttable presumption that, if an applicant for a family violence intervention order has a child who has experienced family violence, that child should be included in the applicant’s family violence intervention order or protected by their own order. The bill implements this recommendation.
Before making either an interim or a final family violence intervention order, the bill requires the court to consider whether there are any children who have been subjected to family violence committed by the respondent. Being subjected to family violence includes a child hearing or witnessing, or being otherwise exposed to the effects of, family violence; for example, a child being present when police officers attend a family violence incident, or a child providing comfort or assistance to a family member who has been assaulted by another family member.
If the court decides to make an interim or a final family violence intervention order, the bill requires the court to either include any child who has been subjected to family violence in the affected family member’s order or make a separate order for the child. This applies to both children who are included in the affected family member’s application and those who are not.
However, the court is not required to include the child in an interim order or make a separate interim order for the child if satisfied that it is not necessary to do so to protect the child or ensure the safety of the child pending a final decision about the application. Similarly, the court is not required to include the child in a final order or make a separate final order for the child if satisfied that it is not necessary to do so to protect the child from family violence committed by the respondent.
If a court refuses to make an interim or a final family violence intervention order for an affected family member, the court may, on its own initiative, make an interim or a final order for a child of the affected family member or respondent, where the court is satisfied that the grounds for making such an order are met.
Alternative service of family violence intervention orders and applications
Under the Family Violence Protection Act, many documents, such as applications and family violence intervention orders, must be served personally on the parties or one of the parties. Police officers generally effect personal service. If a document cannot be served personally, a police officer may apply to the Magistrates Court or the Children’s Court for substituted service.
A family violence intervention order is not enforceable against the respondent until it has been served on them. Personal service provides a high degree of assurance that the respondent is made aware of the order, promoting their compliance and accountability and the protected person’s safety. On the other hand, some respondents may avoid service, and the personal service of documents impacts on the resources of Victoria Police and the courts.
The royal commission observed that there might be cases where a magistrate may be satisfied that service can be effected by other means (for example, by email or registered post) and service by such means will not materially reduce the safety of the protected person or weaken the accountability of the respondent. Changes were recommended to streamline the service of documents, to ensure police and court time is spent protecting and supporting victims and holding perpetrators to account.
The bill implements the recommended changes, providing that where a document, including a family violence intervention order, must be served personally, the court may order alternative service if satisfied that it:
is likely to bring the document to the attention of the person to be served;
will not pose an unacceptable risk to the safety of the affected family member, protected person or any other person; and
is appropriate in all the circumstances.
The court may make an order for alternative service on its own initiative or on the application of a party to the proceeding, for example a police officer or the affected family member. An order for alternative service can only be made against an adult. The reform does not apply to children, nor does it apply to the service of a family violence safety notice.
The bill also provides that where an adult respondent is before the court when a family violence intervention order is made and has been given an oral explanation, the order is immediately enforceable. In these circumstances, a copy of the order must be given to the respondent; rather than being served personally on them. This amendment will also ensure that protection is put in place quickly and further reduces the burden that personal service places on Victoria Police and the courts.
Strike out of family violence intervention order appeals for failure to appear
A party to a proceeding under the Family Violence Protection Act may appeal against an order of the court or a refusal to make an order. The royal commission heard that perpetrators may use legal processes, such as appeals, to further harass and intimidate victims. For example, a perpetrator may use delaying tactics such as failing to attend hearings, seeking adjournments at late notice, and filing an appeal without good reason.
Consistent with the royal commission recommendation, the bill clarifies the courts’ powers to strike out an appeal under the Family Violence Protection Act where the appellant fails to appear at a mention date or the hearing of the appeal.
Clearer legislative provisions will promote certainty and confidence for the courts to strike out appeals. The new provisions balance the objective of providing an appeal process to rectify errors in the making of a family violence intervention order with appropriate powers to reduce the risk of the process being used to retraumatise the protected person.
Explanation of family violence intervention orders
The interaction between the federal family law system and state-based family violence intervention order systems is complex and can be confusing and difficult for people to deal with. State courts have limited jurisdiction under the Family Law Act 1975 (cth). For example, in proceedings to make or vary a family violence intervention order, the Magistrates Court has the power to revive, vary, discharge or suspend certain family law orders to the extent that the family law order is inconsistent with the family violence intervention order.
In the royal commission’s view, clear communication is required from the courts to help the protected person and the respondent understand the effect of a family violence intervention order, particularly where orders have been made under both the Family Violence Protection Act and the Family Law Act.
Currently, the Family Violence Protection Act provides that the magistrate must explain a final family violence intervention order to the protected person and/or the respondent if they are before the court, and the registrar must explain an interim order. These oral explanations must include the information specified in the Family Violence Protection Act. A written explanation containing this information must also be provided to the protected person and the respondent.
As recommended by the royal commission, the bill requires the magistrate to explain an interim order, rather than the registrar. It also requires the oral and written explanations of a final order to include information about how the order interacts with a family law order or an order under the Children, Youth and Families Act 2005. This information must already be included in the oral and written explanations of an interim order.
As a result of these amendments the magistrate will explain both interim and final family violence intervention orders, and the information that must be included in the oral and written explanations of interim and final orders about family law and children protection orders will be consistent.
Recorded evidence-in-chief for witnesses who are children or cognitively impaired persons
Giving evidence in a criminal proceeding can be difficult for victims and witnesses. This experience can be particularly traumatic if it occurs in the physical presence of the accused, or if the evidence needs to be repeated in later proceedings. Using special procedures, such as allowing evidence to be prerecorded and replayed, can improve the experience of witnesses in proceedings.
The royal commission suggested that the government ‘investigate the possibility of prerecording the evidence of victims of family violence (or some categories of victims, for example victims with disabilities) for use in family violence-related criminal prosecutions’.
A range of special procedures are already available for the giving of evidence by certain classes of witness. In particular, the Criminal Procedure Act 2009 allows prerecorded evidence-in-chief to be used for a child or person with a cognitive impairment who is a witness in proceedings for a sexual offence or an indictable offence which involves an assault or threat of assault.
The bill expands these provisions in the Criminal Procedure Act so that they apply in proceedings for a family violence offence.
Approval of prosecutions for the ‘failure to protect’ offence
As recommended by the royal commission, the bill provides that a prosecution for the offence of failure to disclose a sexual offence committed against a child under the age of 16 years, in section 327 of the Crimes Act 1958, must not be commenced without the consent of the Director of Public Prosecutions.
In determining whether to consent to a prosecution, the Director of Public Prosecutions must consider whether the alleged offender has been subjected to family violence that is relevant to the circumstances in which the offence is alleged to have been committed. For this purpose, the term family violence has the same meaning as it has in the Family Violence Protection Act.
Jurisdiction of the Koori Magistrates and County courts
The Koori Magistrates Court does not currently have jurisdiction to deal with contraventions of family violence safety notices, family violence intervention orders or personal safety intervention orders. Although it has jurisdiction to deal with contraventions of personal safety intervention orders, the Koori County Court has no jurisdiction over contraventions of family violence safety notices or family violence intervention orders.
The royal commission recommended the extension of the jurisdiction of the Magistrates and County Koori Courts to include offences where it is alleged that the accused has contravened a family violence intervention order, subject to the approval of the Aboriginal Justice Forum and inclusion of any necessary safeguards. In April 2016 the Aboriginal Justice Forum endorsed this expansion as well as giving the Koori Magistrates Court jurisdiction to deal with contraventions of personal safety intervention orders.
The bill will extend the jurisdiction of the Koori Magistrates Court to include contraventions of family violence safety notices, family violence intervention orders and personal safety intervention orders, and that of the Koori County Court to include contraventions of family violence safety notices and family violence intervention orders.
The bill enables a staged rollout of the expanded jurisdiction of the Koori Courts. This will allow the courts to develop the safeguards necessary to ensure that the hearing of family violence contravention matters delivers cultural safety for victims as well as perpetrators and safety from violence for victims, and provides access to appropriate interventions for both victims and perpetrators.
Victorian Systemic Review of Family Violence Deaths
The Victorian Systemic Review of Family Violence Deaths was established at the Coroners Court in 2009 to support coroners investigating family violence-related deaths. The work of the Victorian Systemic Review of Family Violence Deaths unit aims to improve the understanding of the human and systemic factors involved in family violence-related deaths, and to provide information that assists coroners to identify opportunities to improve policies, systems and service responses for victims and perpetrators of family violence.
The royal commission considered that the process of the Victorian Systemic Review of Family Violence Deaths has clear benefits. As recommended by the royal commission, the bill will establish a legislative basis for the Victorian Systemic Review of Family Violence Deaths unit, by amending the Coroners Act 2008. The new provisions include a list of functions for the Victorian Systemic Review of Family Violence Deaths unit and a requirement that the Coroners Court report on the operation of the unit in its annual report.
Repeal of the uncommenced interim order reform
In response to a royal commission recommendation, the bill repeals uncommenced amendments in the Family Violence Protection Amendment Act 2014, that would have established a new process to allow some interim orders to automatically become final orders without a further court hearing.
Amendments to the Public Health and Wellbeing Act 2008
The bill amends the Public Health and Wellbeing Act 2008 to require local governments to include measures in their municipal health and wellbeing plans to prevent and respond to family violence. The proposed amendments to the act will assist in creating a stronger leadership role for local government in family violence prevention and response. A number of councils are already proactively addressing family violence in their municipalities.
The government is committed to building a future where all Victorians live free from family violence, and where women and men are treated equally and respectfully. This bill is an important part of the government’s landmark reforms to build a new system that protects victims, holds perpetrators to account, and changes community attitudes. We still have more to do, but we are confident that by working together we can achieve our vision for Victoria.
I commend the bill to the house.