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Magistrates' Court (Family Violence Protection) and (Personal Safety Intervention Orders)

Amendment Rules 2019S.R. No. 59/2019

TABLE OF PROVISIONSRule Page

Part 1—Preliminary 1

1 Object 12 Authorising provisions 23 Commencement 2

Part 2—Amendment of Magistrates' Court (Family Violence Protection) Rules 2018 3

4 Form 1A substituted 35 Form 1B substituted 66 Form 2 substituted 9

Part 3—Amendment of the Magistrates' Court (Personal Safety Intervention Orders) Rules 2011 12

7 Certificates may be filed by facsimile 128 Venue of Court 129 Form 2 substituted 12

═════════════

Endnotes 15

1

STATUTORY RULES 2019

S.R. No. 59/2019

Magistrates' Court Act 1989

Family Violence Protection Act 2008Personal Safety Intervention Orders Act 2010

Magistrates' Court (Family Violence Protection) and (Personal Safety Intervention Orders)

Amendment Rules 2019

The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules:

Part 1—Preliminary1 Object

The object of these Rules is—

(a) to amend the Magistrates' Court (Family Violence Protection) Rules 2018 to incorporate changes arising out of—

(i) recommendations made by the Royal Commission into Family Violence and Judge Gray following Judge Gray's investigation into the death of Luke Batty; and

(ii) the enactment of the Oaths and Affirmations Act 2018; and

(b) to amend the Magistrates' Court (Personal Safety Intervention Orders) Rules 2011 to incorporate changes arising out of—

1

(i) amendments made by the Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018; and

(ii) the enactment of the Oaths and Affirmations Act 2018.

2 Authorising provisions

These Rules are made under section 209 of the Family Violence Protection Act 2008, and under section 183 of the Personal Safety Intervention Orders Act 2010, and under section 16(1D) and (1E) of the Magistrates' Court Act 1989 and all other enabling powers.

3 Commencement

These Rules come into operation on 12 July 2019.

2

Part 2—Amendment of Magistrates' Court (Family Violence Protection) Rules 2018

4 Form 1A substituted

For Form 1A of the Magistrates' Court (Family Violence Protection) Rules 20181 substitute—

'Form 1A—Explanation of interim family violence intervention order

Rule 11.02

INFORMATION SHEET—INTERIM INTERVENTION ORDER

An Interim Family Violence Intervention Order has been made against "the respondent".

The person this Order protects is called "the protected person". Children can be included as protected people because being around family violence can cause children serious harm.

1. The Court has made this Interim Order to stop harmful behaviour and protect people. The law gives the Court the power to make this Order because the community values safe and respectful relationships.

2. This Interim Order makes rules (conditions) for the respondent to obey. It says the respondent must not behave in certain ways, be around certain people or go to certain places.

3. If the rules in this Interim Order are broken, it is a crime and the respondent may be arrested and charged. The respondent could go to prison or receive another kind of penalty.

4. Only the Court can change ("vary") or cancel ("revoke") the Order.

The respondent must not pressure the protected person to change or cancel the Order.

It is a breach of the Interim Order to do so.

5. This Interim Order is made against the respondent, so the respondent must obey it. Even if someone asks the respondent to do something that breaks the rules in the Interim Order, the respondent must still obey the Order.

6. The respondent must not use someone else, including family, to do things on their behalf that the Interim Order says they cannot do.

Part 1—Preliminary

Magistrates' Court (Family Violence Protection) and (Personal Safety Intervention Orders) Amendment Rules 2019

S.R. No. 59/2019

3

7. If the protected person and respondent have children this Interim Order may affect whether the respondent can spend time with them. Speak to a lawyer about what the Order says.

8. If you have orders from another court, this Interim Order may affect them. Speak to a lawyer about what the Interim Order says.

9. If the respondent has firearms or weapons, they may not be allowed to keep them. Check to see what the Interim Order says.

10. This Interim Order will say how long it lasts and when you may need to return to court. Check to see what it says. The interim Order is in place until a court can decide on whether to make a Final Order.

11. Any Intervention Order is recognised throughout Australia.

Read the Interim Order more than once and get advice about anything you don't understand.

Police cannot give you legal advice.

For more information:

Victoria Legal Aid www.legalaid.vic.gov.au or 1300 792 387

Victorian Aboriginal Legal Service www.vals.org.au or 1800 064 865

Djirra www.djirra.org.au or 1800 105 303

Men's Referral Service www.ntv.org.au or 1300 766 491

FV support and information www.safesteps.org.au or 1800 015 188

Children, including unborn babies, can be harmed by family violence. This includes:

Children knowing that it is happening even if they are not there at the time.

Children seeing damaged property or injured people.

Children knowing one parent is afraid of, or controlled by, the other.

Children knowing that the family is controlled by one parent's behaviour and moods.

Children intervening to protect a parent or calm one down.



S.R. No. 59/2019

4

http://www.safesteps.org.au/

http://www.djirra.org.au/

http://www.vals.org.au/

Family violence includes a wide range of behaviours. Below are some examples.

Behaviour Some examples

Physical violence Hitting, punching, pushing, pulling, kicking, choking

Sexual violence Pressuring someone into sexual acts; rape Pressuring them to watch or join in

pornography

Property damage Breaking or damaging someone's property or belongings, including jointly owned property or belongings

Economic violence Controlling someone's money against their will

Forcing someone to pay or give money to others or taking money

Stopping someone from working Forcing or tricking someone to take on

debts Using dowry or family finance issues to

control someone

Emotional, social or psychological violence

Making someone feel that no one cares or will help them

Name calling or put downs Making someone fear for their safety Taunting someone about sexuality or

gender identity Sending abusive messages via phone, email

or social media or monitoring what someone does online

Harming or killing pets

Threats To harm people (including themselves), property, or pets

To take children away or to have them taken by others, such as immigration authorities or Child Protection Services

To disclose someone's sexuality or gender identity

To post or send images held on a phone or device



S.R. No. 59/2019

5


To use family members to add pressure To get someone deported

Coercing, controlling, dominating or terrorising

Intimidating, bullying, frightening Controlling where someone goes, what they

wear or eat, when they sleep, who they can see

Stopping someone from seeing or speaking to others

Withholding mobility aids, disability equipment or medication

Forcing someone to marry without their consent

'.

5 Form 1B substituted

For Form 1B of the Magistrates' Court (Family Violence Protection) Rules 2018 substitute—

'Form 1B—Explanation of final family violence intervention order

Rule 11.03

INFORMATION SHEET—FINAL INTERVENTION ORDERA Final Family Violence Intervention Order has been made against "the respondent".

The person this Final Order protects is called "the protected person". Children can be included as protected people because being around family violence can cause children serious harm.

1. The Court has made this Final Order to stop harmful behaviour and protect people. The law gives the Court the power to make this Order because the community values safe and respectful relationships.

2. This Final Order makes rules (conditions) for the respondent to obey. It says the respondent must not behave in certain ways, be around certain people or go to certain places.

3. If the rules in this Final Order are broken, it is a crime and the respondent may be arrested and charged. The respondent could go to prison or receive another kind of penalty.



S.R. No. 59/2019

6

4. Only the Court can change ("vary") or cancel ("revoke") the Order.

The respondent must not pressure the protected person to change or cancel the Order.

It is a breach of the Final Order to do so.

5. This Final Order is made against the respondent, so the respondent must obey it. Even if someone asks the respondent to do something that breaks the rules in the Final Order, the respondent must still obey the Order.

6. The respondent must not use someone else, including family, to do things on their behalf that the Final Order says they cannot do.

7. If the protected person and respondent have children this Final Order may affect whether the respondent can spend time with them. Speak to a lawyer about what the Order says.

8. If you have orders from another court, this Final Order may affect them. Speak to a lawyer about what the Final Order says.

9. If the respondent has firearms or weapons, they may not be allowed to keep them. Check to see what the Final Order says.

10. This Final Order will say how long it lasts and when you may need to return to court. Check to see what it says.

11. Any Final Order is recognised throughout Australia.

Read the Final Order more than once and get advice about anything you don't understand.

Police cannot give you legal advice.

For more information:

Victoria Legal Aid www.legalaid.vic.gov.au or 1300 792 387

Victorian Aboriginal Legal Service www.vals.org.au or 1800 064 865

Djirra www.djirra.org.au or 1800 105 303

Men's Referral Service www.ntv.org.au or 1300 766 491

FV support and information www.safesteps.org.au or 1800 015 188



S.R. No. 59/2019

7

http://www.safesteps.org.au/

http://www.djirra.org.au/

http://www.vals.org.au/

http://www.legalaid.vic.gov.au/

Children, including unborn babies, can be harmed by family violence. This includes:

Children knowing that it is happening even if they are not there at the time.

Children seeing damaged property or injured people.

Children knowing one parent is afraid of, or controlled by, the other.

Children knowing that the family is controlled by one parent's behaviour and moods.

Children intervening to protect a parent or calm one down.

Family violence includes a wide range of behaviours. Below are some examples.


Physical violence Hitting, punching, pushing, pulling, kicking, choking

Sexual violence Pressuring someone into sexual acts; rape Pressuring them to watch or join in

pornography

Property damage Breaking or damaging someone's property or belongings, including jointly owned property or belongings

Economic violence Controlling someone's money against their will

Forcing someone to pay or give money to others or taking money

Stopping someone from working Forcing or tricking someone to take on

debts Using dowry or family finance issues to

control someone

Emotional, social or psychological violence

Making someone feel that no one cares or will help them

Name calling or put downs Making someone fear for their safety Taunting someone about sexuality or

gender identity Sending abusive messages via phone,



S.R. No. 59/2019

8


email or social media or monitoring what someone does online

Harming or killing pets

Threats To harm people (including themselves), property, or pets

To take children away or to have them taken by others, such as immigration authorities or Child Protection Services

To disclose someone's sexuality or gender identity

To post or send images held on a phone or device

To use family members to add pressure To get someone deported

Coercing, controlling, dominating or terrorising

Intimidating, bullying, frightening Controlling where someone goes, what

they wear or eat, when they sleep, who they can see

Stopping someone from seeing or speaking to others

Withholding mobility aids, disability equipment or medication

Forcing someone to marry without their consent

'.

6 Form 2 substituted

For Form 2 of the Magistrates' Court (Family Violence Protection) Rules 2018 substitute—

"Form 2—Application for rehearingRule 13.02

APPLICATION FOR REHEARINGIn the Magistrates' Court at: [specify venue] Case No:

Applicant: [full name of applicant for rehearing]

Applicant's address:

Respondent: [full name of respondent to this application]



S.R. No. 59/2019

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Respondent's address:

Protected person or person protected by the order:

Address:

Details of the application you would like reheard

I (the applicant) am the respondent to an application for a family violence intervention order.

The application was made at [specify court location] on [date].

The application came to my attention on [date].

Have you previously applied for a rehearing of this application? Yes*/No*

Note: If you failed to attend at the time fixed for the hearing of the application and the application was struck out by the Court, you will require leave of the Court to make another application.

Reasons for applying for rehearing

My reason for seeking a rehearing of the application is:

I was not personally served with the application; or

the application was not brought to my attention by an order for alternative service or substituted service prior to the making of the final order; or

there are exceptional circumstances and a rehearing is fair and just.

These circumstances are: [briefly state the reasons why you did not attend the hearing of the application]

Affidavit

I [full name] of [address] *make oath/*affirm and say:

[insert statement to be sworn or affirmed in numbered paragraphs]

The contents of this affidavit are true and correct and I make it knowing that a person making a false affidavit may be prosecuted for the offence of perjury.

*SWORN/*AFFIRMED at: [place]

ON: [date]



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[signature of person making the affidavit]

BEFORE ME:

[name, statement of the capacity in which the authorised affidavit taker has authority to take the affidavit, and personal or professional address in legible writing, typing or stamp]

A person authorised under section 19(1) of the Oaths and Affirmations Act 2018 to take an affidavit.

*delete if inapplicable".



S.R. No. 59/2019

11

Part 3—Amendment of the Magistrates' Court (Personal Safety Intervention Orders)

Rules 20117 Certificates may be filed by facsimile

(1) In the heading to Rule 5.04 of the Magistrates' Court (Personal Safety Intervention Orders) Rules 20112, after "facsimile" insert "or electronic communication".

(2) In Rule 5.04 of the Magistrates' Court (Personal Safety Intervention Orders) Rules 2011, after "facsimile transmission" insert "or other electronic communication".

8 Venue of Court

In Rule 12.01(2)(b) of the Magistrates' Court (Personal Safety Intervention Orders) Rules 2011, after "facsimile transmission" insert "or other electronic communication".

9 Form 2 substituted

For Form 2 of the Magistrates' Court (Personal Safety Intervention Orders) Rules 2011 substitute—

"FORM 2Rule 13.02

APPLICATION FOR REHEARINGIn the Magistrates' Court at: [specify venue] Case No:

Applicant: [full name of applicant for rehearing]

Applicant's address:

Respondent: [full name of respondent to this application]

Respondent's address:



S.R. No. 59/2019

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Protected person or person protected by the order:

Address:

Details of the application you would like reheard

I (the applicant) am the respondent to an application for a final personal safety intervention order.

The application was made at [specify court location] on [date].

Have you previously applied for a rehearing of this application? Yes*/No*

Note: If you were granted a rehearing, and that application was struck out by the Court, you will require leave of the Court to make another application.

Reasons for applying for rehearing

My reason for seeking a rehearing of the application is:

I was not personally served with the application

the application was not brought to my attention by an order for substituted service

there are exceptional circumstances and a rehearing is fair and just

These circumstances are: [briefly state the reasons why you did not attend the hearing of the application]

Affidavit

I [full name] of [address] *make oath/*affirm and say:

[insert statement to be sworn or affirmed in numbered paragraphs]

The contents of this affidavit are true and correct and I make it knowing that a person making a false affidavit may be prosecuted for the offence of perjury.

*SWORN/*AFFIRMED at: [place]

ON: [date]

[signature of person making the affidavit]

BEFORE ME:

[insert name, statement of the capacity in which the authorised affidavit taker has authority to take the affidavit, and personal or professional address in



S.R. No. 59/2019

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legible writing, typing or stamp]

A person authorised under section 19(1) of the Oaths and Affirmations Act 2018 to take an affidavit.

*delete if inapplicable".

Dated: 8 July 2019

PETER LAURITSEN, Chief Magistrate

FELICITY BROUGHTON, Deputy Chief Magistrate

JELENA POPOVIC, Deputy Chief Magistrate

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S.R. No. 59/2019

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Endnotes

Endnotes


S.R. No. 59/2019

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1 Rule 4: S.R. No. 182/2018.2 Rule 7(1): S.R. No. 96/2011 as amended by S.R. No. 203/2014.

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