Family violence intervention orders – Counselling orders

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The article Family violence intervention orders – Counselling orders is written by Kate Da Costa, Partner, Doogue + George Defence Lawyers.

Kate is one of our Partners and is part of our Sunshine team. She regularly represents clients at the Sunshine Magistrates’ Court for various criminal legal issues.

Kate has been working exclusively in the field of criminal law. She has experience in all Victorian criminal law jurisdictions including in the High Court of Australia.

Family ViolenceMale Respondents to Family Violence Intervention Orders must be aware that at some Courts, Magistrates have the power to make Family Violence Counselling Orders compelling a Respondent to participate in a Men’s Behaviour Change Program.

My ex-girlfriend took out an Intervention Order against me. It doesn’t bother me – I don’t want to see her anyway. We were only together for about five months. I went to Court and consented to the Order without agreeing with anything that she said about me, but then the Magistrate said I had to do some kind of counselling or something – and I haven’t even done anything wrong.

A Counselling Order can be made whether or not the Respondent admits family violence. Failure to comply with an Order is a criminal offence and can result in a criminal record.

A Respondent will be eligible for assessment for a Counselling Order if they are the husband or former husband, male partner or former partner, boyfriend or former boyfriend of a woman protected by an Intervention Order. They must also reside in a postcode that allows the making of the Order.

My wife and I had been having trouble for years, then all of a sudden she took out an Intervention Order against me and I was out of the house. It was a shock, but I guess I know it’s over. My lawyer negotiated the terms of a Final Order for me and I agreed to it. The Magistrate said I had to do a Men’s Behaviour Change Program as well. I’ve heard a bit about those programs. Maybe it will help me with getting to see the kids more.

Before Family Violence Counselling Orders can be made, a Magistrate must order an eligibility assessment with a Respondent Support Worker. A written report is then provided to the Magistrate. Broadly speaking, a Respondent will be assessed as eligible for a Counselling Order unless they have a physical or mental impediment that prevents them from participating in counselling. Employment commitments, for example, will not mean a Respondent is ineligible.

It is important for Respondents to be aware that they can be assessed as eligible for a Counselling Order even in circumstances where they deny family violence and the allegations contained in the Application are untested before the Court.

If assessed as eligible, a Counselling Order will be made.

If a Respondent fails to attend the eligibility assessment, or fails to attend a counselling session (regardless of how many appointments they have attended), they will be charged with contravening the Order. The consequences of a finding of guilt for a criminal offence can be far reaching and a Respondent should seek legal advice if charged with contravening a Counselling Order.

In limited circumstances a Respondent can apply for a Counselling Order to be varied or revoked. In order to be successful, it must be demonstrated to the Court that there is no approved Program that the Respondent can reasonably and practically attend, that there has been a change in circumstances that affects a Respondent’s ability to participate in counselling, or that the Order is no longer appropriate.

Counselling Orders can be made at the Magistrates’ Court in Heidelberg, Ballarat, Frankston and Moorabbin. The aim of the power to compel a male Respondent to participate in a Men’s Behaviour Change Program is to increase the Respondent’s accountability for the violence the Respondent has used against a family member; and to encourage the Respondent to change their behaviour. In circumstances where a Respondent admits family violence, or where the Court has made a finding of family violence against a Respondent following a Contested Hearing, compelling participation in a Program may be considered entirely appropriate.

Respondents must be aware however that men who do not admit family violence, but who do not wish to contest the making of a Final Family Violence Intervention Order, can also be compelled to participate in a Men’s Change Behaviour Program.
Date Published: 25 January 2019

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