Counselling Orders

• A counselling assessor , a person employed by Court Services Victoria , to give a report to the court, by a date specified in the order, assessing whether the respondent is eligible to attend approved counselling; and
• The respondent to attend an interview with the counselling assessor for the purposes of preparing that report

The assessment interview is not a hearing before the court. It is a private interview conducted by the counselling assessor. The respondent is required to attend.

The assessment under s 129(3) must assess the respondent as eligible to attend counselling unless the counselling assessor considers that the respondent does not have the ability or capacity to participate in counselling.  Importantly, the eligibility assessment does not turn on whether the respondent committed the acts of alleged family violence , a respondent may be assessed as eligible even if they did not admit to the allegations.

Exceptions to the assessment order requirement: Under s 129(2) of the Family Violence Protection Act 2008 (Vic), the court is not required to make an assessment order if:

• There is already in force an order under s 129 or s 130 in respect of the respondent; or
• There is no approved counselling that it is reasonably practicable for the respondent to attend; or
• In all the circumstances of the case, it is not appropriate to make the order

Failure to attend the assessment: Failing to attend the interview with the counselling assessor without reasonable excuse is an offence under s 129(5) of the Family Violence Protection Act 2008 (Vic), carrying a maximum penalty of 10 penalty units. 

Step 2 – Order to Attend Counselling (s 130)

After the counselling assessor’s report is provided to the court, the court may make an order under s 130 of the Family Violence Protection Act 2008 (Vic) requiring the respondent to attend an approved counselling program.

Unless the court considers, having regard to the respondent’s individual circumstances, that it is not appropriate to do so, the court will make the counselling order. The court must explain the order to the respondent and its consequences before making it (s 136 of the Family Violence Protection Act 2008 (Vic)).

One commonly used approved counselling program is the Men’s Behaviour Change Program, which is available through various providers across Victoria. The program addresses the respondent’s use of family violence and works toward behavioural change. Completion of an approved program and receipt of a report confirming successful completion is the outcome the court is working toward.

Geographic Limitation

A counselling order may only be made against a respondent who, at the time the Final Family Violence Intervention Order is made, is an adult and resides within the jurisdiction of the relevant court. If the respondent does not reside within the court’s jurisdiction, the order cannot be made.

Breach of a Counselling Order

Counselling orders are mandatory once made. A respondent who fails to attend counselling without reasonable excuse commits a criminal offence under s 130(4) of the Family Violence Protection Act 2008 (Vic) and is liable to a penalty.

According to sentencing data from the Sentencing Advisory Council of Victoria (SACStat), breaches of s 130 are sentenced primarily in the Magistrates’ Court and custodial sentences, while possible, are not the typical outcome. The court considers compliance history, the respondent’s individual circumstances, and the broader family violence context before determining the appropriate penalty.

Variation or Revocation of Counselling Orders

Under s 137 of the Family Violence Protection Act 2008 (Vic), the court may vary or revoke a counselling order. An application to vary or revoke may be made where, for example, the respondent has moved to an area where no approved counselling is available, or where other circumstances have changed in a way that makes compliance with the order impracticable.

Confidentiality

The eligibility interview and the counselling assessor’s report are subject to confidentiality protections under s 140 of the Family Violence Protection Act 2008 (Vic). The counselling itself is also subject to confidentiality under s 141. However, the court may make limited use of information from these sources in accordance with s 142.

Specialist Family Violence Courts

Counselling orders are made in ‘relevant courts’ as defined in s 126 of the Family Violence Protection Act 2008 (Vic). A relevant court means the Specialist Family Violence Court Division, the Magistrates’ Court sitting at a venue specified by the Minister by notice in the Government Gazette, or the Children’s Court sitting at a venue similarly specified. Part 5 does not apply in all Magistrates’ Court locations. Specialist Family Violence Courts have magistrates specifically trained in family violence matters, as well as family violence support practitioners for both applicants and respondents, and access to various community support services.

Frequently Asked Questions