Mandatory Counselling for Family Violence Respondents – A Specialist Court Intervention

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Josh HarrisThe article Mandatory Counselling for Family Violence Respondents – A Specialist Court Intervention is written by Josh Harris, Associate, Doogue + George Defence Lawyers.

Josh Harris was admitted to practice after completing a Juris Doctor and a Bachelor of Arts at the University of Melbourne. Before joining Doogue + George, he was an associate at the County Court of Victoria to HH Judge Lyon.

Josh is experienced in indictable crimes such as sexual offences, drug trafficking, and culpable driving. When he was a Senior Associate to the Criminal Reserve List, he was involved in the high level planning, administration, and finalising of all criminal matters listed in the County Court.

Mandatory Counselling for Family ViolenceIn a specialist family violence court, even where you agree to final order without admissions, the Magistrate must make an order requiring a counselling assessment.

This is an issue that needs to be discussed with your lawyer before agreeing to an order even when you are not making admissions as to the conduct. You need to realise that you will be forced into counselling whether you like it or not.

On the face of it this seems a fairly extraordinary and arbitrary consequence of trying to resolve your case.

The establishment of specialist family violence courts has extended both support and powers to address the expanded scope of behaviour now understood as family violence.1 However, these powers are a blunt tool if it captures everyone who consents to an order. Making orders should be an objective judicial exercise that reflects the assessment of risk and mitigating factors, such as a commitment to rehabilitation.

What Does this Mean for Family Violence Offenders?

As a respondent to family violence allegations, the applicants can be twofold – the affected family member, the police, or both. Interim family violence intervention orders can be made in the absence of the Respondent, whether or not the Respondent has been served with a copy.2

This interim order will be in place until the Court decides on whether a Final Order is necessary in the circumstances and the courts are minded to ensure that the affective family member’s protection does not lapse between the expiry of an interim order and the service of a Final Order on a Respondent.

Respondents have options to put forth their individual circumstances and the way in which these options are navigated is important, as breaches of intervention orders carry with it criminal consequences. At the early stages of the process, Respondents can consent to a Final Family Violence Intervention Order without admission, which means that you can agree to conditions of the Final Order even though you do not agree with what is said about you (the Court will make the order without deciding whether you did those things or not).

Counselling Orders

In a specialist family violence court – currently operational at Shepparton, Ballarat, Moorabbin, Heidelberg and Frankston – even where you agree to final order without admissions, the Magistrate must make an order requiring a counselling assessment.3 Failure to attend carries with it a fine of up to 10 penalty units, and non-attendance at the time and place specified in a counselling order is considered a contravention of the order. Satisfying the Court otherwise is a matter of demonstrating that no counselling is reasonably practicable, or that it is not appropriate in all circumstances of the case.

It is presumed under the Act that Respondents are eligible to attending counselling. Before a counselling order is made, a family violence respondent practitioner carries out an eligibility assessment, considering the respondent’s background to determine if they are otherwise ineligible. While any party may appeal a court’s refusal to make a counselling order,4 the applicant, protected person or counselling provider are not permitted to appeal against the decision to make the order. Only a respondent can appeal against the making of a counselling order by a specialist family court division.5

In the interest of fairness, the respondent may on appeal, require the person who prepares an eligibility assessment to attend to give evidence and may cross-examine them on the contents of the report, but this must be done by filing written notice as soon as possible and at least two working days before the hearing.6 When a respondent appeals against a Final Intervention Order, the counselling order is stayed if the operation of the whole final order is stayed, unless the appellate court orders otherwise.

The aim is to have this systemic approach consistent across Victoria by the forecasted implementation date of 30 September 2022.7 Currently, however, it is only available in certain postcodes. At a specialist family violence court, a Respondent can be ordered by the Magistrate to attend a Men’s Behaviour Change Program, while Magistrates of other courts can only order a male Respondent to contact the men’s referral service and seek a referral.

Specialist Representation

These specialist responses to family violence require specialist representation. Approaches to allegations of family violence ought to be prudent, whether the course you seek to take is to contest those allegations, consent to a final order without admitting the allegations or to lodge an appeal. Our specialist team can assist you in making these informed decisions.

Negotiating the conditions at an early stage is important to ensure the matter does not return before the criminal courts for breaches of conditions that otherwise ought to have been excluded. Conditions should be reasonably necessary to address the risk of family violence and, for example, can be negotiated to allow parents of children to communicate with each other in practical ways that can keep a co-parenting relationship amicable and prevent disruption to child-care arrangements.

Although it is common for a final intervention orders’ length to last 12 months,8 it can be as long as reasonably necessary to meet the risk that the Respondent is likely to commit family violence again. A court’s assessment of a person’s future conduct is inherently difficult, and we can assist you in putting all relevant matters, including risk and duration, before the Court for the Magistrate’s consideration. Each case is to be judged on its own merits, and we can work with you to ensure yours isn’t overlooked.

[1] Family Violence Protection Act 2008 (Vic) s 5(1).br>
[2] Ibid, s 54.
[3] Ibid, s 129.
[4] Ibid.
[5] Family Violence Protection Act 2008 (Vic) s 114 (2)(a).
[6] Family Violence Protection Act 2008 (Vic) s 132.
[7] Royal Commission into Family Violence (2015) recommendation 60.
[8] Sentencing Advisory Council, Family Violence Intervention Orders and Safety Notices: Sentencing for Contravention (Monitoring Report, 2013) 16.

Date Published: 11 September 2022

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