Victorian Intervention Orders
Crimes (Family Violence) Act (Vic)

Suggestions for reform of the Victorian Intervention Order application process.

By Sean Hardy, Barrister. 

I have appeared with regrettable frequency in Victorian Magistrates Courts as a barrister on behalf of parties involved in Intervention Order (IO) applications (a.k.a. AVO in NSW) made pursuant to the Crimes (Family Violence) Act (Vic). This article explains the problems that currently occur with IO applications. It suggests that improvements could be made in several ways, including:
• charging a small fee for making Intervention Order applications,
• awarding costs against applicants who make improper applications.

 

What is an Intervention Order?

In general terms, an intervention order is a discretionery order which can be made against a person by a Magistrate who is satisfied that the person has committed acts of domestic violence. The courts have power to grant intervention orders in specific circumstances. Applications can not be made against just anyone. The court must be satisfied that the applicant is a "family member" or a victim of stalking.

An intervention order can restrain a defendant from contacting (in any manner whatsoever) another person, being within a specified distance of the person or any place where the person lives or works, assaulting or threatening the person, or damaging a person's property. An intervention order can prevent a person from being in his or her own home. Any person against whom an intervention order is made automatically becomes a prohibited person under the Firearms Act and must surrender any firearms he possesses. An interim intervention order can be made against a person without their knowledge. Legal Aid produces a booklet providing more information about the nature of intervention orders and the application process.

 

Problems with some IO Applications

In my experience a large majority of IO applications are properly made and intervention orders are properly granted. They are unfortunately necessary to protect vulnerable people from harm. However, I can say that in many cases applications are made without any regard to the requirements of section 4 of the Act, or the definition of "Family Member" in section 3 of the Act, or the elements of the crime of stalking created at s.21A of the Crimes Act. In particular, many applications are made by persons who merely hold a grudge against another, or applications are made for reasons other than for the prevention of violence.

For example, I have been in cases where orders have been sought by people who seem to have grown tired of a relationship and then felt that an intervention order would help to break off the old relationship, and facilitate the creation of new ones, in circumstances where there is no evidence of violence or stalking or fear of any sort. The only reason for seeking the order appeared to be to avoid further embarrassment in the relationship. Another case was where a man intended to commence an extra-marital relationship with a young woman, and when the man's wife questioned him about his several telephone calls with her, he said she was chasing/harassing him which lead to the wife co-ercing him to make application for an intervention order to prevent the harassment. Of course, the man was then left in no position but to go to court and swear on oath that he was being harassed by the young lady. An application was made against someone who kicked a neighbours cat, and another against a person because he went to a former business partner's home to seek payment of a debt owed. I was recently in a case where a lady sought an intervention order because she claimed that her ex-boyfriend was stalking her when his name and handle appeared on her MSN Messenger contact list on her computer (if you are not a MSN user, you may not understand that she controls who appears on her MSN contact list, not him).

These and many similar instances can be witnessed daily by going to your local Magistrates Court any day of the week. It is frightening to realise that each day at least one Magistrate spends his or her entire day dealing with IO applications at Melbourne Court. Often there are two. The same is repeated throughout Victoria. The workload is great, and emotions often high. These factors may explain why many registrars and Magistrates suggest to the parties that they make consent orders, or mutual consent orders.

A Magistrate might say to a party: "If you don't want to ever speak to him again, why don't you make a consent order without any admission of liability, he can consent to a similar order, then you both can get on with your lives and you won't need to have a fight in court today. It seems you don't need to see him any more, and he doesn't want to see you. The order will be made without any admissions or findings that either of you have done anything wrong".

More often than not this results in mutual consent orders being made, and even when a party is represented by counsel it is often counsel who may suggest this as a convenient solution to the problem, especially if it avoids waiting around all day to have a contested hearing.

The result is that many mutual consent orders are made by parties in circumstances where no-one has given any consideration to whether it is truly in the parties best interests, or whether there is any jurisdiction in the court to make such an order. On several occasions I have been to court to apply for the revocation of a consent intervention order on the basis that there never existed jurisdiction to make such an order in the first place, as the parties never were "family members" as defined by the Act. It is intersting to note that in 2003 Parliament had to make an amendment to the Crimes (Family Violence) Act to take care of intervention Orders that were being made by consent but without any jurisdiction. S.25AB now makes a consent order a valid intervention order even if the conduct complained of does not come within the jurisdictional definitions. In other words, provided your neighbour consents, you can now get an intervention order against her if she kicks your cat.

Many times parties engage expensive counsel to protect their interests in the proceeding only to have counsel press upon them the consent order as a solution. One wonders what the point of paying for lawyers is if they merely press you to consent to the very thing that you objected to. It should not be forgotten that the making of an intervention order against a person may seem an inconsequential matter when you are standing before the Magistrate, but in the real world it has real ramifications, including criminal consequences. A breach of an intervention order, for whatever reason, is a criminal offence punishable by up to 5 years imprisonment. The mere making of an order has been known to destroy people's careers.

The police force bears the burden of serving interim and final intervention orders, and then prosecuting any breaches of these orders. The drain on police resources is such that the Police Force is now lobbying for IO orders to be served by the Sheriff's office. This should bring dispair to anyone who has any experience with the performance of the Sheriff's office in serving warrants or orders.

Applications without merit are encouraged because:

The number of meritless applications is taking a toll on the cost and effectiveness of the court system in Victoria. This takes resources away from dealing with deserving cases. It is proposed that a couple of simple reforms would alleviate much of this waste and assist courts to protect victims of violence who really need it..

 

Proposal 1 - Award Costs more frequently

Although in exceptional circumstances it is possible to get a costs order (s.21C), the only time I have seen that discretion exercised is where the applicant has either not turned up for the hearing, or has sought an adjournment of the hearing and caused defence legal costs to be thrown away. The result is that in applications which are brought without merit and are dismissed, an innocent party may incur many hundreds of dollars of legal expenses to defend him/herself from the allegations. In addition to the cost of lawyers, there is the cost of court time. Something needs fixing when we see Magistrates spend all day dealing with IO applications while civil litigants (who usually wait over a year for their court case to be heard) pay hundreds or thousands of dollars daily to lawyers to wait around all day on the 6th floor of the Magistrates Court at Melbourne and often don't get reached in the list for lack of Magistrates. The extra expense born by litigants who don't get reached includes the cost of witnesses and the disruption to their work/employment and associated disruptions to businesses across the state. We know that court time is precious and yet we see more and more petty applications for IOs take up valuable resources.

The court should be given greater freedom to award costs where an application is brought by a person in circumstances where the applicant ought not to have had any reasonable belief that his/her application was being made within jurisdiction. i.e. where a woman doesn't like someone who is working in the same building because he often gives her wolf-whistles and so she makes application, she should be asked to pay legal costs of the IO application as there was never any hope that she came within jurisdiction. Such an application is wasting everyone's time and money. It is a workplace harrasment case, not an intervention order case. These could be discouraged by making costs orders. At present the court seems to be willing to make an order for costs only in circumstances of vexatious (repetitive) litigation. It should be noted that an application which is made within jurisdiction but fails due to lack of proof should not automatically result in a costs order against the unsuccessful applicant, and nor should costs orders be made against unsuccessful respondents. This could be achieved by an enactment that said that a costs order must not be made against a person merely because that person was unsuccessful in the proceeding. At present, no risk on costs gives all applicants hope that a magistrate will find that their situation comes within jurisdiction and that an order will be made. If there is nothing to lose by making the application, then people, particularly when they are emotional or under stress, will make the application.

 

Proposal 2 - Applicants should be charged a fee

I suspect no-one has ever before complained that access to justice is too cheap and easy, but I suggest that it is time that applicants for Intervention Orders where asked to pay a fee (as are all other users of the court, including the police). A fee of a mere $35.00 would, in my opinion, see the number of unwarranted applications for IOs reduced. A drop in applications should be expected because applicants who have no jurisdiction to be before the court will think twice before bringing an application.Before parting with $35 they might pause to consider the question "do my circumstances come within the jurisdiction of the court?"

If an applicant knew there was a good chance they would fail on the jurisdictional point the application may not be made at all. The Small Claims Tribunal has a fee of $32.50 and this plays a part in reducing trivial or hopeless claims in that jurisdiction. Further, people with petty complaints who are simply trying to inconvenience another person will think twice if they have to part with money before being heard. No doubt some people will not let a small fee deter them from taking the opportunity to bad-mouth someone in public. Unmeritorious applications will still occur but a great deal of petty complaints that currently draw great resources will be reduced. They would be further reduced by increasing the power of the court to award costs in such cases.

The police should not be charged a fee for making an IO application. If a case has merit it should be the police bringing the application, not the AFM. That way the complainant is not at risk in respect of the fee or legal costs.

No doubt the Government would not want to be seen as raising obstacles to justice (and safety) against the weak and poor of our society. It would therefore be responsible and reasonable to provide a mechanism whereby a person who is granted an intervention order can apply to the registrar for an exemption from or a refund of the application fee by showing financial hardship (as currently happens in most other proceedings). Another option is to refund the fee if applications succeed.

Until the problem is addressed, every person who doesn't like someone wants to have a go at convincing a Magistrate to give him/her an IO. Sure many don't succeed, but why should time and money be spent hearing applications that have no hope of ever succeeding? It would be preferable if the court spent its time dealing with domestic violence and not neighbour disputes. The Age reports that the effectiveness of intervention orders is impaired by the ease with which they are obtained.

 

Proposal 3 - Applications should be made on notice

Parties with personal or social problems should be coming to court as a last resort. It appears that applications are being made without any consideration of other more practical remedies. In order to reduce the number of applications that are made on the spur of the moment and without proper consideration of the practicalities, it should be made a condition of every application for an intervention order that the Aggrieved Family Member (AFM) file a complaint with the police at least 48 hours prior to making the application for interim intervention order. This will allow the police time to investigate the alleged crime. Police intervention is often enough to dissuade people from harassing each other further yet it seems that in many cases this simple step is not taken. One reason it is not taken is because the complaint is sometimes baseless. Government needs to consider whether it is better to burden the police with investigating complaints of this nature, or whether it is more appropriate to have Magistrates Courts and lawyers investigating these matters.

The ease with which interim intervention orders are obtained encourages exaggerated allegations to be made. AFMs know that a two week order can be obtained simply by going to court and telling an exaggerated tale of suffering. After two weeks, the IO will lapse if the AFM does not want to come to court to pursue the order. Sometimes two weeks is all that is required to cause the damage and distress, or gain any retribution, that was intended by the making of the order.

At present, an interim order made without any notice to the defendant can be granted in the discretion of the court. Tthere is nothing in the legislation to guide the court as to what circumstances must exist before it grants an interim order. In my view, it should be mandatory that an AFM can not proceed with an application for IO without serving the application documents on the respondent/defendant. If circumstances are urgent, the application should be allowed to proceed earlier, especially as respondents may make themselves unavailable for service. Only urgent cases should proceed as interim applications ex parte, and such urgent applications should only be made by complainants who are members of the Police Force. The police have an obligation to investigate crimes of assault and stalking, and these are invariably the matters which form the basis of final intervention orders. Police have power to apply for intervention orders. Since 2005 the Victorian police guidelines require the police to make applications for IO when they investigate an allegation of domestic violence and are satisfied that the is evidence to support the making of an order. This has seen a rapid increase in the number of police applications, which has other side affects within the system). The police should be given exclusive power to make applications for interim orders where there is less than 48 hours notice or no notice at all given to the defendant. If the threat of violence is not grave enough to move the police into acting, then the applicant can comply with usual court procedures by giving notice of the application to the defendant, or waiting for 48 hours after making a police report.

The Supreme Court regularly grants urgent injunctive relief to parties in civil proceedings, and in such cases there has always been a presumption that ex parte injunctions (those without notice to the defendant) are not granted unless exceptional urgent circumstances exist. The Supreme Court usually asks the applicant to return after the defendant has been served and been afforded the right to natural juctice. This rather fundamental principal is currently forgotten or ignored when Magistrates are asked to make ex parte interim orders today. It should be noted that an AFM has no right to an interim order. The Act gives the court the discretion to make an interim order yet the discretion seems to be rarely declined.

 

Conclusion

In summary, IO applications would be more efficient if applicant's were required to pay a fee for making the application. Costs should be awarded in cases which are trivial or without jurisdiction. AFMs should be required to make a report to the police 48 hours before coming to court to issue an IO application. IO applications should normally be heard only after notice has been served on the respondent. Police should be allowed to make IO applications on behalf of an AFM at any time (without service and within 48 hours).

These reforms would not prejudice the making of applications which have merit.

 

Sean Hardy

Barrister

25 August 1999, updated April 2005

 

If you are looking for a lawyer to help you defend an intervention order, try www.interventionorders.com.au

 

 Comments and complaints about this page can be sent to me by email.

 This article is not intended to be a formal presentation or analysis of the ideas expressed within it. It is intended to provoke some discussion and maybe some reform. This page is written and published by Sean Hardy.

 

 

 

AVO and IO related Sites

Applying for an Intervention Order in Victoria [.pdf booklet]

Responding to an Intervention Order in Victoria [.pdf booklet]

www.InterventionOrders.com.au

NSW Judicial Commission Survey of NSW Magistrates, May 1999. Here are some quotes:

"Respondents agreed that PVOs were open to abuse, with many suggesting that they were sometimes used when there was no real fear of violence."

"When requested to identify any changes that they would like to see in the way DVOs were handled, nearly half of the respondents (46%) commented on the role of the police. Many were of the view that police should have more discretion to enable them to filter out unmeritorious cases (19%)."

"18% of respondents advocated changes to court procedure. These included the suggestion that chamber magistrates and registrars should have more power, particularly more discretion to weed out cases with little merit. Ten per cent of respondents considered that more time and resources were required to deal with cases. As one magistrate commented, "dealing with 80 matters in a morning is a nightmare." A few magistrates suggested that the power to order costs might reduce the number of frivolous cases coming before the courts."

"Many respondents ... expressed concern about the proliferation of AVOs, particularly PVOs, which many thought were too easy to obtain. Many issues already raised elsewhere in the survey were repeated, such as the need for better screening of cases, greater use of counselling, mediation and CJCs, introducing a filing fee to deter frivolous cases..."

The Age, 5 Oct 2003:
"Law Institute president Bill O'Shea said ... intervention orders could also lead to unnecessary criminal convictions against people when orders were breached by feuding neighbours, perhaps unintentionally. He said criminal law should not be used to deal with feuding neighbours and in cases where there were no threats of violence. Michele Pathe, a director of the Stalking and Threat Management Centre, said intervention orders were being used indiscriminately in stalking cases without considering how appropriate they might be.
A spokesman for Mr Hulls said the Department of Justice was already looking at intervention orders and where they were applied.
He said the Government realised much of the increase was due to disputes between neighbours, which could be resolved in other ways."


  

 

  

 

 

 

Other topics by Sean Hardy: Drink driving law. Motor traffic offences Demerit points Speeding, Traffic Infringements  Court Drug driving taxi law etc