Stalking: Final Report (html)
6. Personal safety intervention orders and the civil response
to stalking
Overview
• The personal safety intervention order (PSIO) system, the main civil response to non-family violence stalking, is under strain. This makes it challenging for stalking matters to get the attention they need.
• The response must become focused and specialised to make sure that victim survivors can access justice and their safety is prioritised.
• We recommend:
– guidance for courts to identify non-family violence stalking cases
– a specialist approach to non-family violence stalking
– using mediation to free up the PSIO system to focus on stalking and other serious harm.
• The family violence civil response has improved protections, support and legal representation. Where appropriate, this should be matched for people who experience non-family violence stalking.
• For children, the civil response might be their first interaction with the justice system. The response to children needs to recognise evidence about their development and emphasise alternative pathways to prevent long-term contact with the justice system.
The main response to stalking
6.1 The current personal safety intervention order (PSIO) system started in 2011. A person can apply to the Magistrates’ or Children’s Court for a PSIO to protect themselves, their children or their property from stalking behaviours by a non-family member.[1] The behaviours covered include assault, harassment and property damage.[2]
6.2 PSIOs are a civil, as opposed to a criminal, response to non-family violence stalking. However, breaching a PSIO is a criminal offence (see Chapter 7).
6.3 A PSIO is the most common response by the justice system to non-family violence stalking. It is how the state recognises the harm the person who stalks is causing, and puts conditions in place to keep the victim survivor safe.
6.4 When a PSIO is granted, that is often a point in the justice system where the justice needs of victim survivors—for example, to feel believed, supported and safe—can be met (see Chapter 1). It is a significant opportunity to address the behaviour of the person who stalks (see Chapter 8).
6.5 However, it is clear that the civil response is not working as well as it should. PSIOs are often breached, which indicates that the behaviour is not being adequately addressed, and we heard the police response to those breaches is not consistent (see Chapter 7).[3] People who are subject to PSIOs often re-offend.[4]
6.6 We heard from many victim survivors who said they felt unsafe even after they were granted a PSIO.[5] Some think of it as nothing more than a ‘piece of paper’.[6]
6.7 The civil response needs to improve. In this chapter we explain how to re-focus the system on non-family violence stalking matters and make sure these matters get a safe, supported and tailored response.
6.8 This chapter, like our report in general, is about non-family violence stalking. When we use the word ‘stalking’, that is what we mean.
How does the PSIO process work?
6.9 Stalking has the same definition in the PSIO system as under the Crimes Act 1958.[7] Stalking means engaging in a ‘course of conduct’ against a person with the intention of:
• causing physical or mental harm, or
• arousing apprehension or fear in the victim for their own or another’s safety.[8]
6.10 The list of behaviours included in a ‘course of conduct’ is very broad, for example:
• following the person
• hacking their computer
• loitering outside their home
• making threats.[9]
We discuss the offence in more detail in Chapter 7.
6.11 While we do not know exactly how many PSIO matters involve stalking, we know that for adults they commonly restrain people living in close proximity to one another, such as neighbours (27 per cent of ‘protected persons’ under a PSIO) or ‘friends, former friends or acquaintances’ (14 per cent of protected persons).[10] There are more PSIOs made in regional and rural Victoria compared to metropolitan Melbourne.[11] We explore data on PSIOs in more detail in Chapter 2.
6.12 A victim survivor (or ‘affected person’) can apply for a PSIO themselves or consent to someone else applying on their behalf. Police officers can apply for a PSIO for them.[12] The person who applies for the PSIO is the ‘applicant’. PSIOs are made against a ‘respondent’.
6.13 The Magistrates’ Court hears the application, but if any of the parties (the applicant, affected person or respondent) is a child then the Family Division of the Children’s Court hears the application.[13]
6.14 After a PSIO is applied for, a court may make an ‘interim PSIO’ if on the balance of probabilities it is needed to:
• ensure the safety of the affected person(s), or
• preserve their property, and
• it is appropriate in the circumstances.[14]
6.15 An interim PSIO is designed to provide urgent short-term protection. Its aim is to protect the affected person until the court can consider whether to make a final order. For this reason, interim orders can be made without serving a copy of the application to the respondent and without them being present when the interim order is made (‘ex parte’).[15]
6.16 The court can also make an interim PSIO if the parties agree to the order.[16]
6.17 The interim PSIO stays in effect until the court makes or refuses to make the final order, or someone withdraws the application, or the interim order is revoked by the court.[17]
6.18 The court may grant a final PSIO if satisfied on the balance of probabilities that the respondent:
• has committed prohibited behaviour against the affected person and is likely to continue to do so or do so again, and that behaviour would cause a reasonable person to fear for their safety, or
• has stalked the affected person and is likely to continue to do so or do so again, and
• the respondent and the affected person are not family members,[18] and
• it is appropriate in all the circumstances.[19]
6.19 An interim or final PSIO can include conditions a court views as ‘necessary or desirable’ in the situation, for example:
• prohibiting the respondent from stalking
• prohibiting the respondent from approaching or contacting the protected person
• prohibiting the respondent from being within a specified distance of the protected person or a specified place
• revoking or suspending a weapons approval held by the respondent.[20]
6.20 The difference between family and non-family members can sometimes be unclear under the legislation. For example, someone’s current or former intimate partner counts as a family member, but anyone associated with that person—such as their family or new partner—does not. In these situations affected non-family members can be protected by family violence intervention orders but PSIOs are also used.[21]
The need for a focused response
|
In reality the Personal Safety Intervention Order[s] Act appears to be a sharp, shiny sword, but when you pick the sword up to examine it, both edges are blunt and the blade is made of styro[foam].[22] |
6.21 Under the previous legislative scheme, set out in the Stalking Intervention Orders Act 2008 (Vic), the only ground for seeking an intervention order was stalking.[23] Over time, applications under that Act became concerned with other kinds of behaviours that could fit within the broad definition of stalking, including neighbourhood issues, as well as serious and harmful non-stalking behaviour.
6.22 When it was recognised that the stalking intervention order system was being stretched beyond its original, narrow purpose, the Personal Safety Intervention Orders Act 2010 (Vic) was brought in.[24]
6.23 Under the new Act, the grounds for an order were expanded to ‘explicitly recognise some of the other forms of behaviour that had come to be covered by stalking intervention orders—such as harassment and property damage or interference’.[25]
6.24 The PSIO Act was also intended to promote mediation for the less serious matters, while reserving court intervention for stalking cases and serious matters such as assault and sexual assault.[26]
6.25 These reforms were clear, well-intentioned and justified. However, the understanding of stalking behaviours has continued to evolve, and it is clear that there needs to be a further focus on the high harm and risk behaviours that may feature in stalking.
6.26 We were told that PSIOs are used too often as a response to matters that may not require their use. For example, Jim Shaw, from the Criminal Bar Association, told us:
Magistrates tend to err on the side of caution and it is not difficult to get an intervention order.[27]
6.27 Similarly, we heard from the Law Institute of Victoria:
A risk averse approach is being taken and there is a reluctance to refuse to make an order. No one wants to risk that they said no to an order, and something happens later.[28]
6.28 While the system allows for mediation to free up court hearings, in practice mediation is rarely used (see below).
6.29 The volume of PSIOs leads to problems. Derryn Hinch’s Justice Party told us that it becomes difficult to ‘[separate] the serious from the trivial’.[29] Jason Gullaci, from the Criminal Bar Association, explained that using intervention orders ‘for collateral purposes in other ways’ makes it difficult to know which cases ‘will become serious stalking matters’.[30] The Law Institute of Victoria stated that the number of PSIOs makes them harder to police, and victim survivors of stalking may not get the support they need.[31] We were also told that it is important to identify and intervene early in the cases that need to be escalated among the ‘large volume of personal safety matters’.[32]
6.30 Other problems include:
• court backlogs and delays[33]
• wasting police and court resources[34]
• not charging stalking as a criminal offence where it should be (see Chapter 7).
6.31 There is also the question of whether PSIOs ‘run a risk of smashing a walnut with a sledgehammer’.[35] In some cases, a PSIO may be a ‘disproportionate’[36] and ineffective way of stopping the stalking.[37] It risks criminalising people from groups who are overrepresented in the justice system, when there might be another way of managing the behaviour (see Chapter 8).
6.32 The civil response to managing stalking should be more focused. This would achieve two things:
• make the process less traumatic for victim survivors
• provide more attention to the cases that really need it.[38]
The need for a specialised response
6.33 Stalking is complex. It is a crime made up of repeated incidents.[39] It is hard for people working in the justice system to identify it and know how best to manage it (see Chapter 4). Victim survivors may have experienced serious trauma and may require intensive support from the people responding to the stalking behaviour (see Chapter 5).
6.34 It is becoming common to encourage a specialist response in complex areas of law or crime such as sexual offences, family violence and drugs.[40] In family violence and sexual violence, this approach has resulted in a more tailored and supportive response.
6.35 We see value in taking a specialised approach to non-family violence stalking in the courts. If people who worked on the response to stalking understood it better, they would be able to manage it more effectively. Specialist court infrastructure and victim-centred design (discussed below) could help victim survivors to feel safe and prevent contact between the parties continuing through the justice system.
6.36 The general benefits of specialisation also include:
• efficiency—specialists tend to work faster than generalists because they are more familiar with the tasks[41]
• improved decision making—specialists are more likely to make knowledge-informed decisions than generalists[42]
• improved case management—cases can be managed more effectively (because specialisation can improve rates of resolution)[43] and processes are sensitive to the needs of court users.
6.37 In terms of improved case management, it would be easier to:
• more quickly and accurately identify the stalking cases among the other PSIO matters
• make sure enough time and attention is given to more complex or serious cases and make safety issues more visible
• develop expertise amongst magistrates and court staff in stalking, for example, in crafting effective conditions in PSIOs
• provide physical facilities (for example, separate waiting rooms) and technology (such as remote witness facilities) to make sure victim survivors feel safe at court
• identify barriers to participation some people might face, and address them (such as a need for an interpreter)
• link services into the court process and enable victim survivors to access them
• facilitate information exchange between agencies.
6.38 The reforms proposed in this chapter aim to build a more focused and specialised system.
Identifying stalking among PSIO cases
6.39 The PSIO system needs to become more focused[44] to be able to distinguish ‘the relative importance of cases’.[45] It is essential to identify stalking cases in the court system so that they can receive a specialised and tailored response.
6.40 Several organisations and experts proposed that a risk assessment framework,[46] or screening or ‘triage’ system,[47] should be developed. We heard this would:
• help identify stalking and how to manage it[48]
• help identify which disputes are suitable for mediation (discussed next)[49]
• ensure that the PSIO system deals with cases where personal safety is at risk.[50]
6.41 A number of organisations saw value in developing a framework similar to the Family Violence Multi-Agency Risk Assessment and Management (MARAM) framework for stalking.[51] The MARAM is designed to support services and practitioners to identify, assess and manage family violence risk to the victim survivor.[52]
6.42 The Magistrates’ Court strongly supported a framework that could enable all parts of the system—including the court—to identify high risk stalking and provide a more resource-intensive, specialist response for these matters. It said:
We need a way to identify flags indicating risk that might come up in a particular case. When [Magistrates’ Court] staff see these flags, they have a sense of the risk. But we need greater rigour around that.[53]
6.43 Forensicare and the Centre for Forensic Behavioural Science suggested that a multi-agency panel could ‘provide assessment and management guidance’ for cases that are highly complex or concerning.[54]
Guidance for courts should be developed
6.44 In our interim report we recommended guidance should be developed for Victoria Police to identify stalking behaviour. This guidance should contain key components for identifying stalking (such as repetition and the unwanted nature of contact).[55]
6.45 In line with our interim report, we recommend that guidance be developed to help courts to identify stalking behaviour. This guidance would serve an administrative function and assist the court and registry staff to ensure these cases are dealt with appropriately.
6.46 However, we do not endorse a particular risk assessment or screening tool or framework. As we noted in the interim report, more research is needed about the nature, dynamics and risk factors of stalking before these are used.[56] Again, we note concerns about risk assessment tools, including ethical concerns.[57] We also note their limits. For example, risk screening tools:
• may leave little room for decision makers to apply their own professional judgment
• are not statistically reliable
• tend to disproportionately capture people from marginalised backgrounds.[58]
6.47 As was our approach with police, the purpose of the guidance is to provide a clear, logical framework for magistrates, judicial registrars and court staff. It should enable the court to identify stalking, the potential for serious harm or outcomes to the community and the need for services.[59]
6.48 In designing the guidance, we consider the following features to be important:
• Identification of stalking should be informed by evidence-based criteria for defining stalking.[60]
• It should not require magistrates or court staff to perform a task that should be done by trained clinicians.[61] However, magistrates and court staff should be clear on when they need to ask for an assessment or which services people should be referred to (see Chapter 4).[62]
• The criteria should inform eligibility for a specialised or tailored response—this might include safety plans for court appearances and alternative arrangements.[63]
• Magistrates, judicial registrars and court staff, especially registrars who play an important role in triaging the court list, should have training and support to apply the guidance (see Chapter 4).[64] Guidance could also be included in the PSIO Bench Book.[65]
• The criteria should ensure that the process appropriately funnels matters to mediation (discussed next).[66]
• However, the violence protection focus of the PSIO system should be maintained, given there is serious non-stalking behaviour that the civil response also needs to address.[67]
6.49 Some criteria exist under the Dispute Settlement Centre of Victoria (DSCV) guidelines to identify matters that are unsuitable for mediation (for example, the existence of ‘pursuit-type stalking’ and factors such as ‘fear or concern expressed by either party’).[68]
6.50 We note that recommendations made in the interim report will likely also help flag stalking cases to the court,[69] especially if police apply for PSIOs more often and record them systematically.
6.51 In the interim report we discussed the Screening Assessment for Stalking and Harassment (SASH) tool used by the Netherlands Police.[70] It identifies and prioritises cases, and guides management of situations where there is a high level of concern.[71]
6.52 We note that Victoria Police is now piloting the SASH screening tool in two stations.[72]
6.53 Victoria Police cautioned against using tools intended for use by police in other parts of the justice system, because police and courts require information for different purposes and may consider the case at different times.[73] Forensicare also noted that the SASH tool might not be appropriate for magistrates.[74]
|
Recommendation 10. The Victorian Government should provide all necessary assistance to the Magistrates’ Court of Victoria to enable the Court to develop evidence-informed guidance for identifying and prioritising non-family violence stalking in personal safety intervention order matters. |
A specialised approach should be adopted
6.54 The guidance that is put in place should inform the way that magistrates, registrars and court staff respond to PSIO matters. The question is then: What should be the features of this response?
6.55 We agree with the Magistrates’ Court that the ‘infrastructure, systems, people, processes and programs’ that exist to respond to family violence are a useful model for non-family violence stalking.[75] At their core both family violence and stalking can involve the exercise of power by one person over another.[76] Many of the impacts are the same, including isolation from others and fear.[77] Victim survivors of both have many of the same support needs.
6.56 We consider that the approach to non-family violence stalking should draw on the features of the family violence approach. This includes a specialist team (specially trained magistrates, court registrars and practitioners), environments that maximise safety and choice, and connections with services. See Table 11 for some features of family violence courts that we think could also apply in a stalking context.
Table 11: Features of family violence courts
|
Feature |
Description |
|---|---|
|
Pre-court engagement |
A pilot program service engages early with court users to facilitate referrals to appropriate legal and support services and to prepare them for intervention order matters. |
|
Applicant practitioners |
They provide non-legal information, support and referrals for people applying for an intervention order or who are affected by one. They develop safety plans and make referrals to appropriate agencies for support, counselling and longer-term safety planning. |
|
Respondent practitioners |
They provide non-legal information, support and referrals for respondents to an intervention order application. They may conduct assessments, make referrals for support, case management and programs to help address risk of further family violence (such as behaviour change programs). |
|
Accessibility |
For example, a culturally-safe program offers support, information and referrals to Aboriginal and Torres Strait Islander families. LGBTIQA+ family violence practitioners receive specific training on the needs of LGBTIQA+ court users. |
|
Supportive infrastructure |
For example, screens and safe waiting areas in court and remote witness facilities. |
|
Multi-agency cooperation |
Regular coordination happens between different agencies including a daily coordination meeting where issues of risk and needs are discussed if appropriate.[78] |
6.57 It is important to keep in mind, however, that there are fewer PSIO matters compared to family violence intervention order matters (see Chapter 2). It may be more sensible to use existing court structures and resources to implement a specialised approach instead of building new structures from the ground up.
6.58 There are also risks to implementing a specialised approach, which would need to be managed.[79] In our report Improving the Justice System Response to Sexual Offences (2021), we noted the risks of strengthening specialisation through a specialist court, including the risk of ‘burn out’ and vicarious trauma.[80]
6.59 To implement these features, we considered two options:
• making use of the specialist family violence courts’ facilities and approach, and
• a court list for stalking matters (noting that these are not mutually exclusive).
6.60 We think that both these options should be considered if our recommendation is adopted.
Learning from the specialist family violence courts
6.61 The specialist family violence courts have particular features, infrastructure and regional reach. We considered whether to bring into these courts the (probably small) number of non-family violence stalking cases that require a specialised response.
6.62 We were told many of the features of the family violence courts would work well for stalking matters—for example, dedicated magistrates and case management,[81] and connections with services.[82] The family violence courts were viewed as well suited to deal with the issues that commonly arise in stalking matters.[83]
6.63 The Magistrates’ Court told us about aspects of the specialist family violence approach that might be replicated and useful in the management of stalking cases:
• pre-court engagement
• applicant and respondent practitioners
• supportive infrastructure, such as safe waiting areas
• access to legal advice and representation.[84]
6.64 The Court emphasised that more resources would be needed if the scope of the relevant referrals and supports was extended to stalking matters.[85]
6.65 The Victims of Crime Commissioner was clear that court infrastructure should accommodate the needs of all victims, regardless of crime type.[86]
6.66 Victoria Police noted that while there might be benefit in a specialist court, ‘a number of opportunities already exist to extract similar benefits in mainstream courts’, for example through training or court design.[87]
6.67 However, while Forensicare agreed that victim survivors of stalking need special protections and arrangements, their view was that the ‘family violence courts are not the right place for non-family violence stalking’.[88]
6.68 It expressed concerns about the volume of cases already in the family violence courts, and noted that stalking cases needed a level of attention that would be impossible to achieve in the family violence courts. They also said that it would be inappropriate to put non-family violence stalking cases in an environment with a strong family violence ‘culture’.[89]
6.69 Forensicare preferred a stalking list outside family violence courts (discussed next).
A specialist stalking PSIO list
6.70 Regardless of whether the family violence courts are used to manage non-family violence stalking matters, there may be value in creating a clear administrative grouping around non-family violence stalking cases.
6.71 The Victims of Crime Commissioner suggested that consideration should be given to whether a specialist stalking list (or division) should be established in the Magistrates’ Court. This would enable high-risk cases to be centralised and dealt with by specialist magistrates.[90] We agree that centralisation would be helpful for several reasons:
• Cases that need active case management may be more easily identified than is currently the case.
• Victim and respondent services could attend court on list days, improving referrals to services.
• It may be less traumatic for victim survivors if they are in the presence of other victims of stalking (if they were to go to court) instead of in the mix of other matters.
6.72 As one victim survivor told us:
|
There were heaps of IVO disputes at the time between friends/neighbours/colleagues but an IVO for stalking is more serious (victims have died) and should be treated as such.[91] |
6.73 It could assist with the smooth running of matters, again making the process less traumatic for people who experience stalking.
|
The amount of times I took the day off work, to show up to court and find it had been changed was infuriating.[92] |
6.74 If PSIO stalking matters are dealt with using specialist family violence court infrastructure, they should be clearly differentiated from family violence matters. Using the ‘family’ or partner label could be very uncomfortable for affected persons who do not wish to be associated with the person stalking them in this way, especially if the person stalking them is trying to perpetuate that association.
6.75 Importantly, the Magistrates’ Court did not support the creation of a specialist stalking list. They told us that a ‘risk framework’ to identify cases that need to be escalated for a specialist approach would be preferable.[93]
6.76 The Court was also concerned that the small numbers of non-family violence stalking matters that occur all over Victoria could not justify a list at any one court venue.[94] We note that when courts and police get better at identifying stalking matters amongst PSIOs, these numbers may increase.
6.77 We think there are ways of addressing these concerns while still achieving the benefits of a specialist list, especially given the shifts in court practice during the pandemic. For example, the Court could centralise matters in some court locations and hear them remotely.
6.78 In this instance, the Court is best placed to determine how a specialist approach to these matters might be most effectively implemented.
|
Recommendations 11. The Magistrates’ Court of Victoria should apply the guidance developed in Recommendation 10 to identify non-family violence stalking personal safety intervention order matters that require a specialised approach. The Magistrates’ Court of Victoria should implement a specialised approach to these matters. 12. The Magistrates’ Court of Victoria should consider the extent to which the specialist family violence courts should be used for non-family violence stalking personal safety intervention order matters, and how the non-family nature of those cases should be differentiated within the current system. 13. The Victorian Government should resource the Magistrates’ Court of Victoria to implement Recommendation 11. |
Mediation of non-stalking matters
6.79 The current PSIO system was designed to direct less serious cases to mediation through the free, government-run Dispute Settlement Centre of Victoria (DSCV).[95] It does not provide for stalking matters to be mediated.
6.80 As the then Attorney–General noted:
Mediation is no longer an adjunct to the justice system … [it] is a core part of court business … where safety is not at risk. It is time to stop seeing mediation as an ‘alternative’ form of dispute resolution –– it is now an integral part of the justice system and an ‘appropriate’ form of dispute resolution.[96]
6.81 We do not suggest that stalking matters should be dealt with by mediation. That is not appropriate, given everything we know about stalking. As the Centre for Forensic Behavioural Science explained:
Mediation is not a suitable solution in stalking cases and may in fact enable the stalker to continue stalking their victim through the mediation process.[97]
6.82 The nuanced criteria applied by DSCV to identify which matters are appropriate for mediation expressly exclude stalking.[98] However, using mediation for more non-stalking PSIO matters could have an indirect benefit for the management of stalking cases by freeing up court time and resources.
6.83 The PSIO Act gives magistrates the power to direct parties to attempt mediation.[99] The outcomes of the mediation process, and whether or not the parties attend mediation, can be taken into account by the magistrate when deciding whether to make a final order.[100]
6.84 To smooth the process, DSCV set up referral protocols with the Magistrates’ Court. For example, registrars have mediation referral forms they can fill in which will result in DSCV making contact with the parties to talk about the issues they need to resolve, instead of a process that leads to a PSIO being made.[101]
6.85 Early in the development of the DSCV PSIO program, they established a police referral pilot. This involved DSCV staff training police and providing a clear pathway for police members to directly refer people in dispute to DSCV for mediation. This program ended in 2019 due to limited funding, but DSCV told us that it would be valuable to re-instate it, given the frequent police involvement in lower-level PSIO disputes and their potential suitability for mediation.[102]
6.86 Ideally, there are also DSCV Dispute Assessment Officers (DAOs) physically present at courts to receive referrals from registrars or magistrates. The DAO can complete an assessment of the matter’s suitability with the parties on the spot, and can sometimes conduct the mediation on the same day. Although the numbers of DAOs have been greatly reduced due to the coronavirus (COVID-19) pandemic, DSCV told us they were aiming to re-instate this workforce.[103]
6.87 While there was much energy behind the mediation pathway when the reforms first came in, the use of mediation seems to be on the decline, especially since the pandemic started. DSCV shared data with us indicating this trend (see Figure 2).[104]
Figure 2: Referrals from courts to DSCV over time
6.88 We heard some support for promoting mediation as an option in non-stalking matters.[105] The Magistrates’ Court told us that more could be done to encourage mediation in cases where it was safe.[106]
6.89 Strengthening pathways to mediation for non-stalking PSIO matters could relieve pressure on the PSIO system. It would give the system a stronger focus on stalking and more serious matters.
6.90 Data from the DSCV confirms that referring disputes to the DSCV saves court days and reduces delays for other matters.[107] The DSCV told us that it has capacity to take on more mediations.
6.91 Rather than ‘downgrading’ or giving these disputes a lesser form of justice (than the courts), mediation may in fact lead to better outcomes. An example of this is where there is an existing relationship to be preserved, such as in neighbour dispute matters.
6.92 Pathways to mediation can be strengthened using existing law and structures to ensure that as many matters as possible and appropriate have access to DSCV’s bespoke mediation service. We recommend:
• making guidelines on mediation more widely available including to police, magistrates, judicial registrars and court staff—for example, its use, benefit and limits could be included in the PSIO bench book or on the Magistrates’ Court website on PSIOs
• re-establishing referral pathways where they have ended—for example, the previously-funded direct police referral program[108]
• education for police, magistrates, judicial registrars and court staff on the benefits of mediation and when it should be used (see Chapter 4)[109]
• staffing more courts with DAOs—in the past higher numbers of referrals were received where a DAO was present on the day PSIO matters were listed.[110] There should be a focus on rural and regional Victoria, given the higher rates of PSIO applications there.[111]
|
Recommendations 14. The Victorian Government should strengthen pathways from the personal safety intervention order system to mediation, in non-stalking matters only, by: a. making the Dispute Settlement Centre of Victoria (DSCV) mediation guidelines more available to police, magistrates, judicial registrars and court staff b. funding the DSCV police referral program to re-establish referrals directly from police c. funding DSCV to increase Dispute Assessment Officer attendance, and ensuring that as many matters as possible and appropriate have access to the personal safety intervention order mediation program, with a focus on enhancing resources for matters in rural and regional Victoria. 15. In implementing Recommendations 1 and 3 of the interim report, Victoria Police should ensure that appropriate referrals to mediation are made for people who are not victim survivors of stalking. |
There are future options for specialisation
6.93 We received other suggestions for reform. Derryn Hinch’s Justice Party suggested introducing specialist orders based on the civil Stalking Protection Orders in the United Kingdom to help separate stalking matters out from other matters requiring some form of protection.[112] At this stage we do not recommend stalking protection orders, however the recommendations we do propose would achieve the aim of separating stalking matters out.
6.94 In the consultation paper we asked about the need for the equivalent of a family violence safety notice (FVSN), which is issued by police who attend family violence incidents. FVSNs provide urgent and temporary protection until the court can make an interim or final order.[113] The PSIO Act does not have an equivalent police-issued notice.
6.95 Under the PSIO Act, police have the power to apply to the court for a warrant to arrest the respondent if the court believes on reasonable grounds it is necessary to:
• keep the victim survivor safe
• preserve their property, or
• ensure that the respondent attends court.[114]
6.96 If the court grants the application, police can then arrest the respondent and bail them with conditions that protect the victim survivor until the matter can be brought before a magistrate.
6.97 There was some support for having a police-issued notice in the PSIO system, especially in rural and regional Victoria,[115] because such a notice could be issued speedily.[116] However, others saw no need for it. Reasons included:
• the context of serious violent acts, where there was not enough time for an intervention order to be put in place, was less relevant in PSIO matters than in the family violence system[117]
• potential unintended consequences depending on the situation[118]
• interim orders can be obtained quickly enough already.[119]
6.98 There are concerns about the implementation of FVSNs, including well-documented and increasingly common issues where police misidentify the primary aggressor.[120] It may be difficult for police at the scene of a matter to avoid issuing notices if under pressure from parties to do so, for example, at a heated dispute between neighbours. If police had similar powers in the PSIO system, the same problems might arise.
6.99 Further, if (as with FVSNs) a police-issued notice is treated as an application for an intervention order, this would lead to even more PSIO applications. This would make it difficult to identify serious stalking matters.[121]
6.100 If clear guidance is developed to identify stalking cases, it may become possible to target police-issued notices sufficiently to avoid those risks. However at this stage we do not make a recommendation to introduce a police-issued notice in the PSIO system.
System improvements should be based on family violence legislation
6.101 The PSIO process can be long, frustrating and traumatic for people who experience stalking. This could be a barrier to reporting the stalking behaviour.
6.102 It may also mean that victim survivors are not equipped to present their best evidence. It can be frightening for victim survivors to be part of a process when the person who stalks them is also part of it.
6.103 The PSIO process can even make matters worse, enabling people who stalk to do more of it through the justice system.
6.104 There is a public interest in making sure that victim survivors are treated fairly, supported and not subjected to unnecessary distress through the court process.
6.105 The PSIO Act, like the Family Violence Protection Act 2008 (Vic) (FVPA), provides for ‘alternative arrangements’ to be made in PSIO proceedings. The court has a broad power to order changes that can include:
• allowing parts of the proceeding to happen remotely, like a witness giving evidence by CCTV
• using screens to block the respondent from a party or witness’s sight
• allowing a support person to sit beside a witness while they give evidence
• requiring lawyers to stay seated, rather than standing to speak
• any other arrangements the court considers appropriate.[122]
6.106 In making these orders, the court must consider the witnesses’ wishes, their age and maturity, the facilities available to the court, and anything else it considers relevant.[123]
6.107 We heard that there are other aspects of the Family Violence Intervention Order (FVIO) system that would improve the PSIO system response to stalking. The FVIO system has specific protections for victim survivors of family violence, and supports them to give their best evidence. People who have experienced non-family violence stalking have less protection and support.[124]
6.108 We propose that maximum advantage should be taken of those aspects of the FVIO system, so that victim survivors of stalking also benefit from the huge progress that has been made in Victoria. As the County Court told us:
Both personal safety and family violence intervention orders involve the question of an individual’s safety, so for this reason there should be a consistent approach to the protections on offer. If there was to be a difference it would be by way of assessment of the degree of risk, but there is no reason that a complainant under either of these systems should be any less advantaged than the other.[125]
6.109 However, the Magistrates’ Court emphasised that impact on demand and resourcing should be carefully considered before implementing any new measures. It cautioned against applying them too broadly across the entire range of PSIOs.[126]
Restrictions on publication should cover adults
|
My biggest concern was my privacy and not wanting my story to get out in court by reporters. I kept it to myself for a long time because I didn’t want my husband knowing about my stalker or getting involved at court by his lawyer.[127] |
6.110 One of the hallmarks of stalking is an invasion of privacy. Participating in public court processes can raise privacy concerns. The PSIO Act makes it an offence to publish reports of proceedings or details of orders that may lead to the identification of parties, but only in matters where a party or witness is a child.[128] The equivalent limitations in the FVPA apply to parties more generally, not just children.[129]
6.111 There are broad restrictions, under both the FVPA and the PSIO Acts, on the types of information that can be published about what happens in court. Children cannot be identified and their pictures cannot be used.[130] This goes further than simply restricting the use of the parties’ names and details. It extends to other kinds of ‘identifying particulars’ (for example, about their education, employment, physical appearance, recreational interests and beliefs).[131]
6.112 We heard support for increased protections of adults’ privacy in the PSIO Act. A person who experienced stalking told us they supported publication bans in relation to adults, especially those who were ‘vulnerable’.[132] Djirra supported expanding the restriction on publication in the PSIO Act to cover adults and protect the safety and privacy of Aboriginal and Torres Strait Islander people who have experienced stalking.[133]
6.113 Benefits to victim survivors could include:
• preventing further trauma
• protecting their own and others’ privacy
• addressing a potential barrier to victim survivors applying for a PSIO.
6.114 Victoria Police told us that publication of information about PSIO matters could also provide people who stalk with ‘perverse affirmation’ of their offending, and even a sense of additional power over their victim.[134]
6.115 As with all restrictions on publication of court matters, this must be balanced against the public interest in transparency of justice. PSIOs can cover a wide range of behaviours aside from stalking, some of which may relate to public interest issues that justify publication. We consider that this issue should be managed by judicial discretion.
6.116 Importantly, the FVPA provides an exception to the restriction on publication when adult parties consent.[135]
6.117 Under the FVPA, the court may allow publication of identifying particulars or a picture, if it reasonably considers that:
• it is in the public interest to allow publication
• it is just to allow it in the circumstances.[136]
6.118 We recommend that the restriction in the PSIO Act on publication be extended to cover adults. Judicial discretion to allow publication should be included, similar to section 169 of the FVPA, and adult victims should be permitted to consent to publication, with appropriate safeguards, along the lines of section 169B of the FVPA.
6.119 Under recent amendments to the Judicial Proceedings Reports Act 1958 (Vic), exceptions can be made to prohibitions against publication of details about victims of sexual offending.[137] This includes where the victim is a child. A child may give (usually written) permission for publication of particulars, if permission is accompanied by a statement from a relevant person (usually a doctor or psychologist) that attests that the child understands:
• what it means to be identified as a victim of a sexual offence
• the consequences of losing their anonymity.
6.120 The child may also set limits on the extent of publication that they will permit.[138]
6.121 We recommend that, consistent with this approach, the relevant provision in the PSIO Act include a provision to allow for victims under 18 years of age to consent to publication and that adequate safeguards are included.
|
Recommendations 16. The Victorian Government should amend section 123 of the Personal Safety Intervention Orders Act 2010 (Vic) to extend the prohibition on publication to matters involving adults. 17. The Victorian Government should include a provision in the Personal Safety Intervention Orders Act 2010 (Vic) to the effect of section 169 of the Family Violence Protection Act 2008 (Vic) to provide for judicial discretion to make an order allowing publication when the court reasonably considers that it is: a. in the public interest b. just in the circumstances. 18. The Victorian Government should include a provision in the Personal Safety Intervention Orders Act 2010 (Vic) to the effect of section 169B of the Family Violence Protection Act 2008 (Vic) to enable victims to consent to publication, with appropriate safeguards. |
Protection from cross-examination by the respondent
6.122 Under the PSIO Act, people who experience stalking can still be personally cross-examined by the person who has stalked them. The FVPA prohibits this based on relevant criteria. We recommend that victims of stalking should also be protected from cross-examination by the respondent in PSIO matters.
6.123 The FVPA lists people considered ‘protected witnesses’. Under the FVPA, a protected witness must not be personally cross-examined by the respondent unless:
• they are an adult
• they consent to being cross-examined by the respondent or, if they have a guardian, the guardian has consented
• if they have a cognitive impairment, the court is satisfied that they understand the nature and consequences of giving consent and would be competent to give evidence, or
• the court decides that it would not have a harmful impact on the protected witness for the protected witness to be cross-examined by the respondent.[139]
6.124 Protected witnesses under the FVPA are:
• the affected family member or the protected person[140]
• a child
• any family member of a party to the proceeding
• any person declared by the court to be a protected witness for the proceeding because the court is satisfied of particular circumstances.[141]
6.125 The court’s general power or obligation to prevent improper questioning of witnesses under the Evidence Act 2008 (Vic) also applies to proceedings for an FVIO and PSIO.[142]
6.126 There was support for introducing limits on the respondent personally cross-examining the affected person in PSIO matters that mirror the FVPA provisions.[143]
6.127 We heard concerns that the legal process would be used to perpetuate the abuse,[144] and about the risk of traumatising the affected person.[145] As Sexual Assault Services Victoria said:
Being able to cross-examine the victim survivor is giving the perpetrator what they are seeking in controlling or making the victim survivor fearful.[146]
6.128 Victoria Police told us that one reason why people do not report stalking is the fact that they can ‘expect no protection’ from being cross-examined by the person stalking them.[147]
6.129 While the Magistrates’ Court could not recall a case of a ‘high risk, high harm’ respondent cross-examining a victim survivor, they said ‘it could happen, and that would be undesirable’.[148]
6.130 We agree with these views. Being personally cross-examined by the person who has stalked them could be distressing for the applicant, and prevent them from giving their evidence effectively, which does not make for a fair process. We agree it could present a barrier to reporting. We recommend that the PSIO Act be amended to prohibit the respondent personally cross-examining the applicant in PSIO matters.
6.131 In Chapter 7 we discuss a ban on personal cross-examination in criminal cases.
What should the criteria for protection be?
6.132 A ban on personal cross-examination would have resource implications, because there would be more need for legal aid, which could also lead to delays.[149] So the ban should not be total. We consider that there should be criteria to decide who is a ‘protected witness’, subject to judicial discretion.
6.133 We heard suggestions about the factors that courts should consider in deciding whether cross-examination should be banned in a particular PSIO matter. They included:
• the nature or seriousness of the alleged conduct[150]
• the relationship between the affected person and the respondent[151]
• the level of fear of the affected person[152]
• whether cross-examination would perpetuate stalking behaviour[153]
• the ‘vulnerabilities’ of the affected person,[154] for example if they have a cognitive impairment.
6.134 We consider this set of criteria to be appropriate in deciding who is a ‘protected witness’ in PSIO matters.
6.135 It narrows down who is eligible for legal aid (discussed below), while ensuring that the people most likely to experience distress from being personally cross-examined are protected. The criteria could potentially catch witnesses in other types of serious, non-stalking PSIO matters, but they would also benefit by being protected from cross-examination.
6.136 We note other suggestions that the prohibition could apply to ‘more serious stalking offences’[155] or be based on a risk assessment.[156] The guidance criteria in Recommendation 10 could eventually be aligned with the criteria here to more closely target stalking-type behaviours.
Legal representation for cross-examination
6.137 Respondents are entitled to a fair process and to test the evidence against them. Under the FVPA, if a respondent who is banned from cross-examining a protected witness does not have a lawyer, the court must order Victoria Legal Aid to provide one to cross-examine the protected witness.[157]
6.138 If the FVPA provisions were mirrored in the PSIO Act, the court would have a similar power to ensure respondents could get a lawyer for the purposes of cross-examination.
6.139 We recommend that unrepresented applicants or protected persons should have the same protection, and be provided with a lawyer by Legal Aid if they are going to be cross-examined by a lawyer for the respondent. This protection also exists in the FVPA.[158]
6.140 Victoria Legal Aid should be funded to provide this representation in PSIO matters.
|
Recommendations 19. a. The Victorian Government should amend the Personal Safety Intervention Orders Act 2010 (Vic) to provide for a category of ‘protected witnesses’ as in the Family Violence Protection Act 2008 (Vic) that bars respondents from personally cross-examining protected witnesses. b. In determining whether to declare a person a ‘protected witness’ for the proceeding the court should consider the following circumstances: • the nature or seriousness of the alleged prohibited behaviour • relationship between the affected person and respondent • the level of fear of the affected person • whether cross-examination could perpetuate stalking • any specific needs of the affected person. 20. The Personal Safety Intervention Orders Act 2010 (Vic) should include an equivalent provision as in section 71 of the Family Violence Protection Act 2008 (Vic) for the court to order Victoria Legal Aid to represent otherwise unrepresented respondents for cross-examination of the protected witness. 21. The Personal Safety Intervention Orders Act 2010 (Vic) should include an equivalent of section 72 of the Family Violence Protection Act 2008 (Vic) for the court to order Victoria Legal Aid to represent otherwise unrepresented applicants or protected witnesses for cross-examination of the protected witnesses. 22. Victoria Legal Aid should be funded to provide the legal representation described in Recommendations 20 and 21. |
Legal representation and support should be strengthened
Gaps exist for applicants and respondents to PSIOs
|
The court lawyer was fantastic and felt like the only person on our side until the magistrate approved the application without hesitation.[159] |
6.141 There are broader issues of access to legal information, advice and representation in court in PSIO matters. This has a significant impact on those who seek PSIOs to address stalking. For some applicants in PSIOs, not having a lawyer can be a barrier to securing an outcome in the justice system. One person who had reported her stalking experience 5–10 years ago told us:
|
The other person ended up hiring a top lawyer and I didn’t have the money to spend on a lawyer so I ended up not getting the final intervention order as the person contested it. I was so devastated.[160] |
6.142 A lack of legal representation can add to the feeling of helplessness people often feel within the justice system. One person who made a report of stalking to police 2–5 years ago told us:
|
I had no idea what was going to happen, there [was] no duty lawyer or community legal help for PSIO. |
6.143 Di McDonald, a person who experienced stalking, told us:
|
My Aunt [and] I waited hours to speak to Legal Aid. I was concerned about being called into the [courtroom] not having any advice on what I needed to do. The |
6.144 We heard that legal support for non-family violence stalking victim survivors tends not to be ongoing[162] or receives insufficient funding.[163] Domestic Violence Victoria and the Domestic Violence Resource Centre Victoria told us:
Community legal centres are a good existing resource where the public can go to understand their legal rights and obligations and the legal implications of stalking but they have limitations in the services they can provide due to funding constraints.[164]
6.145 The Federation for Community Legal Centres highlighted the difference in legal assistance for victims between family violence and non-family violence stalking matters:
While community legal centres (CLCs) provide legal assistance in family violence matters (pre-court and through court duty services), there is no corresponding government funding for personal safety intervention order (PSIO) matters. This has created a discrepancy in the legal assistance available for victim survivors of family violence and victim survivors of (non-family violence) stalking and those at risk of harm, threat or violence. This is an area of unmet legal need.[165]
6.146 Djirra explained that there are no Aboriginal community-controlled legal services for Aboriginal and Torres Strait Islander people who need assistance with PSIOs, and that many ‘cannot afford a private lawyer.’[166]
6.147 The eligibility requirements for legal aid grants for PSIO matters are also narrow.[167] Under Victoria Legal Aid’s guidelines, people over the age of 18 are not eligible to have a lawyer in PSIO matters unless they come within the state’s special circumstances guideline—that is, they have a low level of ‘language or literacy’ or have an ‘intellectual or psychiatric disability’.[168]
6.148 Liberty Victoria told us it is often difficult to have funding by Victoria Legal Aid approved for the preliminary steps in a PSIO proceeding or a contested hearing.[169] There are few options for respondents in PSIO matters to be represented by free lawyers.
6.149 Victoria Legal Aid confirmed that it had reduced duty lawyer advice and in-court advocacy services for PSIOs. It only provides those services to adults who have a ‘cognitive or neurological disability’ or have a related FVIO matter listed on the same day. They said this was because of the high volume of PSIO matters and the ‘blurring of low-risk matters with those that are potentially high risk’.[170]
6.150 We note that Victoria Legal Aid provides information about the PSIO process on its website, and has produced legal information ‘self-help’ packages for both applicants and respondents to PSIOs.[171]
The need for legal advice and representation
6.151 Springvale Monash Community Legal Centre described an ‘urgent and critical need’ for legal advice and representation for parties to PSIOs.[172] We heard about problems that may be created by the gap in legal support for applicants and respondents:
• It could be a barrier to victim survivors pursuing a PSIO application —they might feel overwhelmed and withdraw.[173]
• Navigating the legal system can be a complicated and traumatic exercise for victim survivors.[174]
• People experiencing ‘disadvantage’ or ‘vulnerability’ might be even more ‘at risk of exposure to the criminal justice system’ without lawyers to adequately explain their rights and obligations.[175]
• Unrepresented respondents are likely to increase delay in proceedings because courts have additional responsibilities to ensure that the proceedings are fair.[176]
• Lawyers for respondents can connect their clients to appropriate services and programs, which may assist in addressing the underlying causes of their behaviour.
6.152 There are clear benefits of more legal support. For example:
• Neighbourhood disputes could be more efficiently diverted to appropriate alternative pathways.[177]
• Courts would be properly assisted so that PSIO proceedings run smoothly.[178]
• It would help meet the justice needs of victim survivors—for example, the need for information and support (see Chapter 1). They could be protected against inappropriate questions in court.
• With family violence intervention orders, respondents are more likely to follow those orders if they feel that they have been treated with fairness and respect.[179] The same may be true for PSIOs.
6.153 The Federation of Community Legal Centres stated:[180]
Where both parties are legally represented, this can promote early resolution of matters. This is because both parties are advised by their lawyers about the most appropriate course of action in their matter; and are assisted with reaching an agreed outcome (where possible and appropriate). Early resolution avoids a drawn out and stressful court process (which can fuel conflict and heighten safety risks) while also reducing pressure on an already overburdened court system.
6.154 We heard support for access to legal advice and representation for both respondents[181] and affected persons in PSIO matters.[182]
6.155 Suggestions included:
• funding for Aboriginal community-controlled organisations to provide legal advice and representation to Aboriginal and Torres Strait Islander women and children experiencing non-family violence stalking[183]
• funding to Victoria Legal Aid and community legal centres to provide advice and representation[184]
• expanding Victoria’s victims’ legal service.[185]
6.156 The Victims of Crime Commissioner advocated for victims to have access to a government-funded legal service. In the context of stalking, it would assist victims:
• to identify the options available to address stalking
• to advocate for appropriate interventions, including applying for PSIOs.[186]
6.157 We note that the scope of the victims’ legal service announced by the Victorian Government is limited to providing legal advice and assistance to victims applying for financial assistance and restitution and compensation orders.[187]
6.158 Legal representation for children is discussed below.
6.159 We agree that legal support and representation needs to be strengthened for both applicants and respondents to PSIOs in matters that involve non-family violence stalking. This would lead to smoother proceedings, reduced delays, better evidence and a higher rate of resolution. It would probably represent an overall saving to the justice system.
6.160 The services identified in this inquiry—mainly community organisations, legal centres and Victoria Legal Aid—must be adequately funded to deliver comprehensive legal support and representation.
6.161 Comprehensive legal advice and representation would likely include:
• advice on legal options and prospects of success
• referrals to mediation (where appropriate)
• assistance with applications
• lawyers to represent people in PSIO matters (or support to self-represent)
• advice on protections such as alternative arrangements or protections of privacy.
6.162 One person who had experienced stalking supported free legal representation in some PSIO matters, especially for ‘new arrivals to the country’, people with disabilities, Aboriginal people and people who were ‘disadvantaged’.[188]
6.163 Derryn Hinch’s Justice Party suggested that eligibility for legal representation should give priority to the cases that carry the highest risk.[189]
6.164 If guidance for sorting stalking matters from other PSIO matters was developed (discussed above), these criteria could be used by legal services providers to determine who was eligible. In the meantime, eligibility should be based on their internal assessment of need.
|
Recommendations 23. The Victorian Government should provide funding to community legal centres, Aboriginal-controlled legal services and Victoria Legal Aid to expand access to legal advice and representation for applicants and respondents in relation to non-family violence stalking personal safety intervention order matters. 24. Eligibility for access to legal advice or representation for applicants and respondents in non-family violence stalking personal safety intervention order matters should be determined based on the guidance developed in Recommendation 10. |
Efficient protections and procedural fixes should be introduced
Online applications are available for individuals
6.165 In our consultation paper we asked whether, and in what circumstances, a person making an application for a PSIO should be able to do so online. FVIOs at the time could be made online.
6.166 We heard support for online applications but this was mostly qualified support, emphasising the need for safeguards.[190]
6.167 We heard concerns that online applications could:
• increase the number of vexatious or inappropriate applications[191]
• reduce the capacity of the court to filter PSIO applications[192]
• risk the person stalking gaining knowledge of the online application if they were monitoring the victim survivor online, which could cause their behaviour to escalate.[193]
6.168 The Law Institute of Victoria raised concerns about online applications potentially adding to the overuse of PSIOs, but said it would support them if a process for attesting to the truth of the application were included.[194] Victoria Legal Aid said a system was needed to vet applications to ensure there was minimal risk to the people using the system, otherwise it would not support online applications.[195]
6.169 Since our consultation paper, the Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters Act) 2022 (Vic) has passed. It amended the PSIO Act to allow applications to be made by phone, fax or other electronic communication, which would enable the making of online applications.[196]
6.170 The Magistrates’ Court has informed us that the online application form was carefully designed.[197] For example, it has built-in flags that will help prioritise matters according to risk level. Those applications will be vetted by the registrar. They also noted that the form requires the applicant to sign a declaration of truth.[198]
6.171 It is unclear whether monitoring or evaluation has been built into the implementation of the process. We consider the reforms should be monitored to ensure that the process is safe for victim survivors and that online applications do not put the PSIO system under further stress. A glut of online applications could result in even less time and resourcing to identify and deal with stalking PSIOs.
|
Recommendation 25. The Victorian Government should monitor and evaluate the implementation of online applications for personal safety intervention order matters. Findings should inform the use of online applications to ensure it is safe for use in non-family violence stalking matters and does not reduce the capacity of the court to provide an effective response to these matters. |
Allowing interim orders on the Court’s own motion
6.172 Under the Family Violence Protection Act, the court may make an interim intervention order on its own motion where neither the affected person nor police have applied for it. It can do this where satisfied (on the balance of probabilities) that an order is needed to:
• ensure the safety of the affected family member
• preserve property
• protect an affected family member who is a child.[199]
6.173 The court may also make an interim order in some situations, including where the parties to the FVIO application have consented to it or do not oppose it.[200]
6.174 The Magistrates’ Court told us that it would be desirable to have a similar power in the PSIO Act as part of a bail application.[201] The Children’s Court did not see a need for it as it was of the view that police would apply for the order and the provision was not likely to be used by the court.[202]
6.175 We see no reason why the FVPA provision should not also be replicated in the PSIO Act, given the Magistrates’ Court has identified the need for it in some cases. Such a change is likely to promote the safety of people who experience stalking. It provides a safeguard, allowing for a PSIO to be made when no one applies for it.
6.176 Notwithstanding the information provided by the Children’s Court, we anticipate there may be situations where police have not applied for an interim PSIO, but the Court considers it appropriate to put an order in place.
|
Recommendation 26. The Victorian Government should amend the Personal Safety Intervention Orders Act 2010 (Vic) to allow for interim orders to be made on the court’s own motion as is the case in the Family Violence Protection Act 2008 (Vic). |
Appeals de novo
6.177 A decision to make a final PSIO can be appealed to the County Court. At present the appeals are heard de novo, that is, the appeal court hears the matter from the beginning.[203] The original applicant must present and prove their case, and the original respondent is not required to prove that the decision was wrong.[204] The appeal court can uphold the decision, set the decision aside, or vary the decision.[205] The new decision is final.[206]
6.178 In this type of appeal, the person who experienced stalking may:
• be required to appear as a witness for a second time
• be cross-examined again.
6.179 Experts have long discussed the risk of de novo appeals re-traumatising victims. In 2006, for example, the Victorian Parliamentary Law Reform Committee (focused on the criminal context) recounted strong arguments to this effect.[207]
6.180 Recently the Justice Legislation Amendment (Criminal Appeals) Act 2019 (Vic) changed the way that appeals of criminal cases will be decided in the County Court. Instead of a fresh hearing, appeals will be decided using a transcript of the evidence from the original hearing in the Magistrates’ Court. The County Court will only hear additional evidence if it considers this to be in the interests of justice.[208]
6.181 Future appeals from the Magistrates’ Court to the County Court from summary criminal convictions for stalking will be heard under the new scheme.
6.182 As set out by Dr Steven Tudor and Greg Byrne, the policy framework outlined a balance between the importance of an appeal, the modernisation of the courts, and ‘avoiding unnecessary re-traumatisation of victims and witnesses’.[209] These considerations are equally relevant to the PSIO system.[210]
6.183 However, not everyone supports abolishing de novo appeals. Some argue that victims already have appropriate protections while giving evidence on appeal.[211]
6.184 In the context of stalking, however, the experience of the victim and importance of limiting contact is critical. Concerns about re-traumatisation are especially serious in situations where victims may be experiencing long campaigns of harassment and intimidation. Alternative arrangements for giving evidence,[212] while valuable, are not enough to override the harm that might be caused to the victim.
6.185 Given that a criminal stalking charge would likely be dealing with substantially similar conduct as a stalking PSIO (including the similar issues relating to victim welfare and trauma), we consider that different appeal regimes should not apply only because one matter is criminal and the other is civil.
6.186 The appeals provisions in the PSIO Act should be amended to align with the new provisions on criminal appeals. Specifically, when hearing appeals against final PSIOs, the court should rely on the original transcript of evidence instead of hearing the matters de novo. Aligning PSIO appeals with the new criminal appeals system will promote consistency across the justice system.
|
Recommendation 27. The Victorian Government should amend the appeals process that applies to personal safety intervention orders to align with the amendments in the Justice Legislation Amendment (Criminal Appeals) Act 2019 (Vic) to de novo appeals from the summary jurisdiction. |
The need for a different approach for children and young people
6.187 The PSIO Act permits an intervention order to be made against a child aged ten or older.[213]
6.188 A significant number of PSIOs involve children, with the Children’s Court issuing around 8 per cent of PSIOs.[214]
6.189 At least 27 per cent of protected persons had school-related relationships, meaning the PSIOs were against a schoolmate, a student or a teacher.[215] Another 25 per cent were friends or former friends, some of whom may also have had school-related relationships.[216]
6.190 The PSIO legislation recognises that children should be treated differently to adults.[217] But the approach does not go far enough in emphasising their different developmental stage and the value of early intervention and therapeutic pathways.
6.191 The criminal justice system has long recognised the reduced culpability of children compared to adults, and the important role of early and therapeutic interventions.[218] We consider a similar approach to be appropriate for stalking matters in the civil justice system.
6.192 There are evidence-based, developmental reasons for a different response to children. Children might not understand what stalking behaviour is or the risks of doing it.[219] Because children’s capacity for consequential thinking is still developing, an intervention order is likely to be less effective. This is a major reason to avoid bringing children into the justice system through PSIOs.
6.193 Some children and young people have complex needs. They may have cognitive issues, acquired brain injuries or intellectual or developmental disabilities. These may sometimes make it difficult to be aware of the impact of their behaviour on the victim survivor.[220]
6.194 Forensicare noted that people with autism spectrum disorders were over-represented among those under 18 who are involved in stalking.[221] Victoria Legal Aid told us about PSIOs being used by institutions to manage challenging behaviours in children, including those in state care.[222] For these children, managing their behaviour is best achieved outside the justice system.
6.195 However, stalking behaviour in children must still be taken seriously. The approach to child respondents must of course include a focus on ensuring the victim’s safety. We have heard about the serious risk of violence in this context.[223] As one study argues, child stalking is ‘too commonly trivialised as harmless or inoffensive’, when ‘the rates of threats … and assault … [can be] higher than those reported in adult samples’.[224]
The potential negative impacts on child victims can be lasting and severe.[225]
PSIOs should be prohibited for those under 14
6.196 In the context of the discussion to raise the age of criminal responsibility and the principle of doli incapax (‘incapable of crime’[226]) we heard support for a ban on (or at least a presumption against) PSIOs being made against anyone under the age of 14 years. We also heard a therapeutic response should be preferred over a justice response.[227]
6.197 We recommend that the PSIO Act be amended to prohibit a PSIO being made against a person under the age of 14, for reasons outlined in the next section.
PSIOs are not an effective safety measure for those under 14
6.198 The Law Institute of Victoria (LIV) noted the presumption of doli incapax, arguing that ‘children do not sufficiently understand the consequences of their actions [below] this age’.[228] The Victorian Aboriginal Legal Service shared this concern, describing PSIOs as an unsuitable and overused response for young people.[229]
6.199 The underlying principle of doli incapax is that a child below 14 years of age is ‘not sufficiently intellectually and morally developed to appreciate the difference between right and wrong’.[230] The doli incapax presumption generally applies in the criminal context.
6.200 However, emerging neuroscience research has supported its central premise about child development, in the context of public debate on the age of criminal responsibility.
6.201 Dr Enys Delmage notes that ‘there is a strong base of emerging evidence highlighting consistent and universal differences in the judgment and consequential thinking processes between children and young people and adults.’[231] Professor Chris Cunneen asserts that children and young people lack the maturity of adults and this reduces their ability to make appropriate decisions.[232]
6.202 The Sentencing Advisory Council highlights evidence suggesting that the natural process of child brain development is associated with lower impulse control, attraction to risk, and greater vulnerability to peer pressure.[233]
6.203 Overall the evidence indicates that it is inappropriate to sanction children for actions that they are unable to fully understand.
6.204 Crucially, a child’s lessened ability to understand the consequences of their decisions also suggests that the deterrent effect of PSIOs is likely to be limited.[234] When the respondent’s compliance with the conditions of a PSIO is the very thing that is intended to afford protection to the victim survivor (by putting a stop to the behaviour), this is a serious concern.
PSIOs risk further contact with the justice system
6.205 The Sentencing Advisory Council found that over the period 2011–2020 there were 8115 PSIO applications to the Children’s Court of Victoria, resulting in 6379 interim PSIOs and 4399 final PSIOs.[235]
6.206 PSIOs carry serious consequences for child respondents, such as restrictions to their freedom of movement.[236] The Victorian Aboriginal Legal Service told us that PSIOs may even force a child to withdraw from school due to bullying and the weight of the legal process.[237]
6.207 Breaching a PSIO is a criminal offence (see Chapter 7). For that reason, a PSIO against a child may act as a gateway into the criminal justice system and its related negative outcomes: greater risk of reoffending and ongoing justice system contact, poor future health and educational outcomes, and other long-term disadvantages.[238]
6.208 With the legal responses to stalking producing potentially devastating consequences for many child respondents, we consider there is a public interest to consider less punitive (and arguably more effective) pathways for children under 14 years who engage in stalking behaviours.
Some concerns were raised about changing the age limit
6.209 We note the Children’s Court’s position that it does not see the presumption of doli incapax as preventing the court from considering PSIO applications against those under 14 years. One magistrate told us:
I don’t think I’ve met a child that doesn’t know what an intervention order is—they have a very easy, accessible lens of what an intervention order is—they’ve heard the terms and they do seem to know.[239]
6.210 The Children’s Court does not support prohibiting PSIOs under the age of 14. In its view, serious questions of safety do arise in this cohort, and interim PSIOs are one of the few tools available to protect those who might be at risk.[240]
6.211 The Court explained the approach that it takes, which includes asking for detailed reports, services and legal representation. It stressed that while interim orders are a necessary safety tool, it avoids making final orders against young people where possible.[241]
6.212 The Court told us:
We have interim [orders] in place while we explore other mechanisms—that is really important—interim orders are made urgently ex parte in the absence of the respondent for the protection of the person.[242]
6.213 We understand these concerns, and that the Court wishes to retain the tools it has to protect victims’ safety. However, we note again that it is questionable how effective PSIOs are in deterring children from the behaviour the subject of the order.
6.214 While we acknowledge the proactive approach taken by the Court in seeking to avoid making final orders, over half the applications made in the last 10 years in the Children’s Court resulted in final orders, which risk extending contact with the justice system. Importantly, both interim and final orders are subject to the criminal offence of breach of a PSIO, so both options can result in contact with the criminal justice system.[243]
6.215 We appreciate the need to manage serious behaviour quickly, but this cannot be a reason to maintain the current age minimum. Instead we should look to change a system where interim orders are the only thing courts can do to address these behaviours.[244] We propose an alternative, more effective response which does not increase the risks of young children becoming criminalised. We discuss our recommendation for a pathway to address stalking behaviour in children below.
|
Recommendation 28. The Victorian Government should amend the Personal Safety Intervention Orders Act 2010 (Vic) to prevent personal safety intervention orders being made against respondents under the age of 14 years. |
Alternative pathways are needed
6.216 There are no formal pathways for child respondents in stalking cases.[245]
6.217 While there are youth community forensic services, these cover a range of problem behaviours and do not have enough resources to meet demand.[246] They also tend to provide services based on a young person having had existing contact with the justice system.[247] There are no specific programs to address stalking behaviours in children.[248]
6.218 Forensicare noted that it receives many requests for treatment for people under 18 but is not funded to treat them.[249]
6.219 Victoria Legal Aid submitted that there needs to be a greater focus on responding to problem behaviour at an earlier stage through supports that ‘address the behaviours and underlying causes’.[250]
6.220 This was also the view expressed at a meeting on children and young people. The meeting expressed support for civil diversionary options before PSIO applications are issued against a young person.[251]
6.221 As there is a ‘scarcity of programs and options to help the young person understand the impact of their behaviours’, we heard that schools could be a good place to implement diversionary options.[252]
6.222 We agree with these views and recommend a therapeutic program be developed to address stalking behaviour in children. The program should provide an alternative pathway instead of an interim or final PSIO against the child.
6.223 Early intervention with this group is an area of opportunity. As Purcell et al observe:
Intervening at the first signs of stalking behaviours offers the best chance to reduce stalking recidivism in the perpetrator, and arguably to stem any progression to more entrenched or serious forms of interpersonal violence in later life, including domestic abuse or sexual assault.[253]
6.224 Appropriate and effective interventions could:
• reduce the impact of adolescent stalking
• prevent young people from continuing to stalk as adults[254]
• avoid the risk of PSIOs extending a child’s contact with the justice system.
6.225 Developing an alternative pathway will be challenging. Further research is needed on adolescent stalking, especially outside the context of an intimate relationship.[255] There is an especially small amount of research on interventions for this group.
6.226 However, the clinical management strategies for adult offenders could be used as a guide for responding to young people who stalk.[256]
6.227 Forensicare noted that the therapeutic treatment order model was very effective and could be adapted for stalking matters.[257]
6.228 The Children’s Court said that it would appreciate any alternatives, but noted that it would not order alternatives that criminalise a child’s non-attendance or failure to participate.[258]
|
Recommendation 29. a. The Victorian Government should establish and fund an evidence-informed therapeutic program to respond to children engaging in non-family violence stalking behaviour. b. A purpose of the program should be to avoid the need for a personal safety intervention order being made against a child respondent. c. The Victorian Government should evaluate the effectiveness of the program and improve the program based on the findings of the evaluation. |
Other protections may be necessary
6.229 The PSIO Act contains a number of specific protections for child respondents.
6.230 To make a final order, the court must be satisfied that it is ‘appropriate in all the circumstances’.[259] For children, the court may consider the child’s ability to understand the nature and effect of a final order, and to comply with its conditions. The court considers this in the context of their age and maturity.[260]
6.231 In considering whether to make a final PSIO, the court may order an assessment report about the child respondent.[261] This report must include matters that the court considers relevant, including any psychological or psychiatric assessment.[262]
6.232 For child respondents, and unlike the case for adults, orders may not be made by the consent of the parties only.[263]
6.233 The PSIO Act also places limits on conditions that affect a child respondent’s housing, and outlines factors that a court must consider before granting an interim order against a child respondent.[264] Before including a condition that excludes the child respondent from a residence, the court must consider all the circumstances of the case and issues such as:
• the respondent being supported to gain access to appropriate educational and health services
• allowing the education, training or employment of the respondent to continue without interruption.
6.234 The PSIO Act limits conditions that would affect a child’s access to education. Before including any condition that would prevent a child respondent from approaching an affected person or attending a school premises, the court must consider if that condition may prevent the respondent attending their current school, or one they wish to attend.[265]
6.235 Some stakeholders suggested that these provisions could be taken a step further. Suggestions we heard included:
• a legislative presumption against interim orders for children.[266]
• a ban on interim orders made against children in their absence[267]
• stronger legislative presumptions against excluding children from school, and ‘genuine and meaningful management by the [Department of Education and Training]’ where exclusion is sought.[268]
• a requirement for decision makers to consider the broader consequences of the impact of an order on where the child is living or whether an order will prevent a child from attending school.[269]
6.236 We do not propose to recommend restricting the use of interim orders in light of the Children’s Court’s comments about the need to act quickly for safety reasons in these matters.[270]
6.237 Similarly, we heard from the Children’s Court that bringing matters on ex parte was often unavoidable, and formed part of its ability to hear interim orders quickly in matters where serious safety issues existed.[271]
6.238 We consider that the provisions to guide decision making in relation to impact on a child’s housing or education are already quite strong. The relevant provisions of the Family Violence Protection Act 2008 (Vic) are quite similar.[272]
6.239 However, we consider that final PSIOs against children 14 and over should be an order of last resort.
6.240 There is no requirement to consider an alternative pathway for children before making an order in the PSIO Act (or for that matter, under the FVPA). There is no presumption against an order being made.
6.241 Victoria Legal Aid said a justice response should be avoided when there could be a therapeutic response.[273]
6.242 We agree that therapeutic pathways for children should be preferred. The response to children needs to evolve to recognise evidence about their development and prevent long-term contact with the justice system. Early intervention should be used to stop the stalking behaviour, for the benefit of both the child respondent and the community.
6.243 Stalking among adolescents can be serious and include threatening and violent forms of pursuit. Adolescent stalking should be taken seriously, given the ‘even greater potential for disruption to the victim’s life and the risks of being attacked.’[274]
6.244 To acknowledge the potentially serious impacts of adolescent stalking we propose that there is a legislative presumption against making a final PSIO unless:
• a therapeutic process was attempted and was unsuccessful
• the therapeutic process is inappropriate in all the circumstances of the case.
6.245 Such a legislative presumption would effectively strengthen protections on education and housing issues as well.
6.246 To support a therapeutic approach to children, we recommend education for judicial officers, judicial registrars and court staff on the impact of PSIOs on children, taking into account their developmental needs.
|
Recommendation
30. The Victorian Government should include a legislative presumption against the making of a final personal safety intervention order against child respondents PSIOs should only be available against respondents of this age where: a. a therapeutic process (such as the one developed under Recommendation 29) has been undertaken but was unsuccessful, or b. in cases where the therapeutic process is inappropriate in all the circumstances of the case. |
Legal assistance for children is a priority
6.247 As discussed earlier, legal support for both applicants and respondents in the PSIO system is important. It is especially important for children, who have little knowledge of their legal rights or available avenues or remedies.[275]
6.248 The Children’s Court told us that child respondents are always represented.[276] Although eligibility for grants of legal aid to adults in PSIO matters was reduced in 2020, Victoria Legal Aid did not cut eligibility for children, who continue to be eligible for legal representation ‘at all stages of proceedings’:
Changes to our guidelines for legal assistance will help to ensure that children, both applying for orders and responding to applications, understand the process, and are supported to achieve safe and appropriate outcomes for their individual circumstances.[277]
6.249 It is encouraging to see that legal representation for children in PSIO matters is being prioritised.
6.250 The Children’s Court, however, noted that under the FVPA, the Court can allow that a child (who is not the applicant) be separately represented, where the court considers it appropriate.[278] A similar provision does not exist in the PSIO Act.
6.251 The LIV raised a concern about a lack of legal representation for children, especially at regional and metropolitan courts.[279] Given the importance of having a lawyer, we recommend that any gaps in legal representation for applicant and respondent children be mapped and addressed. This includes amending the PSIO Act to enable the court to order that a child who is neither the applicant nor respondent (another child party) be represented.[280] We consider that in cases where the child is not the applicant (for example, where a parent or police officer has applied for a PSIO on their behalf), that child should still be afforded the benefits of legal representation, which include having a voice in the proceedings, and having the outcomes and ramifications of any order and conditions made clear to them by their lawyer.
6.252 The increase in demand for providers such as Aboriginal-controlled legal organisations, community legal centres and Victoria Legal Aid should be assessed and funding should be delivered accordingly.
|
Recommendations 31. The Victorian Government should amend the Personal Safety Intervention Orders Act 2010 (Vic) to include a provision similar to section 62 of the Family Violence Protection Act 2008 (Vic), empowering the court to order that a child who is neither an applicant nor respondent be legally represented. 32. The Victorian Government should provide funding to community legal centres, Aboriginal-controlled legal services and Victoria Legal Aid to expand access to legal advice and representation for child applicants and respondents in relation to non-family violence stalking personal safety intervention order matters. |
-
As discussed in Chapter 2, family violence intervention orders (FVIOs) protect people from violence by a family member.
-
Personal Safety Intervention Orders Act 2010 (Vic) s 10(1)(b).
-
Submission 70 (Di McDonald); Victorian Law Reform Commission, Stalking: Summary of Responses to Online Feedback Form from People with Experience of Stalking (Report, August 2021). Police data on PSIO breach offences recorded by police in the 10 years from 2011 to 2020 shows that there were 26,329 recorded PSIO breach offences during this period. The number of PSIO breaches recorded per recent years includes 3,553 in 2018, 4,000 in 2019 and 4,343 in 2020: Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022) [5.2].
-
Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022) xiii.
-
Victorian Law Reform Commission, Stalking: Summary of Responses to Online Feedback Form from People with Experience of Stalking (Report, August 2021).
-
Submission 56 (Derryn Hinch’s Justice Party).
-
Personal Safety Intervention Orders Act 2010 (Vic) s 10; Crimes Act 1958 (Vic) s 21A.
-
Personal Safety Intervention Orders Act 2010 (Vic) s 10(1)(a).
-
Ibid s 10(1)(b).
-
Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022) xi, in relation to PSIOs made in the Magistrates’ Court.
-
Ibid [10.3].
-
Personal Safety Intervention Orders Act 2010 (Vic) s 15.
-
Ibid ss 102–4.
-
Ibid s 35(1).
-
Ibid s 37.
-
Ibid s 35(2).
-
Ibid s 43.
-
In family violence cases, the relevant order is a Family Violence Intervention Order (FVIO) under the Family Violence Protection Act 2008 (Vic).
-
Personal Safety Intervention Orders Act 2010 (Vic) s 61(1).
-
Ibid s 67.
-
DPP v Banks (a pseudonym) [2019] VCC 1185, [22]; Family Violence Protection Act 2008 (Vic) s 76.
-
Submission 107 (J Starr).
-
Stalking Intervention Orders Act 2008 (Vic) ss 1, 7, as repealed by: Personal Safety Intervention Orders Act 2010 (Vic) s 186.
-
Victoria, Parliamentary Debates, Legislative Assembly, 9 June 2010, 2226 (Rob Hulls, Attorney-General).
-
Ibid 2227.
-
Ibid 2226–7.
-
Consultation 24 (Criminal Bar Association).
-
Consultation 20 (Law Institute of Victoria).
-
Submission 56 (Derryn Hinch’s Justice Party).
-
Consultation 24 (Criminal Bar Association).
-
Consultation 20 (Law Institute of Victoria).
-
Consultation 34 (Magistrates’ Court of Victoria (No 2)).
-
Consultation 10 (Victorian Aboriginal Legal Service). The Victorian Aboriginal Legal Service told us that the ‘significant detrimental impact on the health and wellbeing of the respondent’ can be compounded by court delays.
-
Consultation 20 (Law Institute of Victoria).
-
Consultation 1 (Centre for Forensic Behavioural Science).
-
Consultation 10 (Victorian Aboriginal Legal Service).
-
Consultation 1 (Centre for Forensic Behavioural Science).
-
Submission 56 (Derryn Hinch’s Justice Party).
-
Marilyn McMahon, Paul McGorrery and Kelley Burton, ‘Prosecuting Non-Physical Abuse between Current Intimate Partners: Are Stalking Laws an Under-Utilised Resource?’ (2019) 42(2) Melbourne University Law Review 551, 575.
-
Patrick Parkinson, Specialist Prosecution Units and Courts: A Review of the Literature (Report for the Royal Commission into Institutional Responses to Child Sexual Abuse, March 2016) 6–7.
-
Ibid 11.
-
Ibid 12.
-
Ibid 13.
-
Submission 98 (Law Institute of Victoria); Consultation 15 (Forensicare (No 1)).
-
Submission 56 (Derryn Hinch’s Justice Party).
-
Submissions 76 (Australian Association of Social Workers), 97 (Federation of Community Legal Centres), 98 (Law Institute of Victoria); Consultation 7 (Risk roundtable).
-
Consultations 13 (Victoria Legal Aid), 18 (County Court of Victoria), 34 (Magistrates’ Court of Victoria (No 2)).
-
Submissions 97 (Federation of Community Legal Centres), 98 (Law Institute of Victoria).
-
Submission 98 (Law Institute of Victoria); Consultation 18 (County Court of Victoria).
-
Consultation 18 (County Court of Victoria).
-
Submission 76 (Australian Association of Social Workers); Consultation 34 (Magistrates’ Court of Victoria (No 2)).
-
The Family Violence Multi-Agency Risk Assessment and Management (MARAM) is established under Family Violence Protection Act 2008 (Vic) pt 11.
-
Consultation 34 (Magistrates’ Court of Victoria (No 2)).
-
Submissions 32 (Centre for Forensic Behavioural Science), 100 (Forensicare); Consultation 1 (Centre for Forensic Behavioural Science).
-
Victorian Law Reform Commission, Stalking (Interim Report No 44, December 2021) [3.8]–[3.11] Recommendation 3.
-
Ibid [4.100].
-
Ibid [4.46]–[4.72].
-
Ibid [4.88]–[4.94].
-
Ibid [4.102].
-
Submission 100 (Forensicare).
-
Victorian Law Reform Commission, Stalking (Interim Report No 44, December 2021) [4.101].
-
Consultation 36 (Forensicare (No 2)).
-
Submission 100 (Forensicare).
-
Submission 97 (Federation of Community Legal Centres); Consultation 12 (Domestic Violence Victoria and Domestic Violence Resource Centre Victoria).
-
Consultation 36 (Forensicare (No 2)).
-
Submission 98 (Law Institute of Victoria).
-
Consultation 34 (Magistrates’ Court of Victoria (No 2)).
-
Dispute Settlement Centre of Victoria, DSCV Assessing Suitability Criteria (Guideline, undated). These guidelines for assessing suitability for mediation of matters referred to DSCV by the court are issued under Personal Safety Intervention Orders Act 2010 (Vic) s 34.
-
Forensicare considered that it was important for police to put a ‘flag’ on stalking cases and for this to carry through to the court system: Consultation 15 (Forensicare (No 1)). In our interim report we make a recommendation to improve the recording of stalking matters by police: Victorian Law Reform Commission, Stalking (Interim Report No 44, December 2021) Recommendation 4.
-
Victorian Law Reform Commission, Stalking (Interim Report No 44, December 2021) [4.34].
-
Ibid [4.78]–[4.79].
-
Victoria Police, Stalking (Web Page, 4 April 2022) <https://www.police.vic.gov.au/stalking>.
-
Submission 115 (Victoria Police).
-
Consultation 36 (Forensicare (No 2)).
-
Consultation 34 (Magistrates’ Court of Victoria (No 2)).
-
Bonnie Brandl, Candace J Heisler and Lori A Stiegel, ‘The Parallels between Undue Influence, Domestic Violence, Stalking, and Sexual Assault’ (2005) 17(3) Journal of Elder Abuse and Neglect 37, 44; Royal Commission into Family Violence: Summary and Recommendations (Report, March 2016) 17. See also Family Violence Protection Act 2008 (Vic) s 5.
-
Bonnie Brandl, Candace J Heisler and Lori A Stiegel, ‘The Parallels between Undue Influence, Domestic Violence, Stalking, and Sexual Assault’ (2005) 17(3) Journal of Elder Abuse and Neglect 37, 47–8.
-
Consultation 34 (Magistrates’ Court of Victoria (No 2)). The Magistrates’ Court also emphasised as a key feature the integration of the MARAM framework.
-
The obligation of employers to take precautions to manage risks to the health and safety of employees, including those arising from the nature of the work was considered in Kozarov v Victoria [2022] HCA 12, (2022) 399 ALR 573. That case concerned a negligence claim by a former solicitor of the Victorian Office of Public Prosecutions who had worked in its Specialist Sexual Offences Unit.
-
Victorian Law Reform Commission, Improving the Justice System Response to Sexual Offences (Report No 42, September 2021) [18.29].
-
Consultation 7 (Risk roundtable).
-
Consultation 13 (Victoria Legal Aid).
-
Submission 98 (Law Institute of Victoria).
-
Consultation 34 (Magistrates’ Court of Victoria (No 2)).
-
Ibid.
-
Submission 49 (Victims of Crime Commissioner).
-
Submission 115 (Victoria Police).
-
Consultation 36 (Forensicare (No 2)).
-
Ibid.
-
Submission 49 (Victims of Crime Commissioner).
-
Victorian Law Reform Commission, Stalking: Summary of Responses to Online Feedback Form from People with Experience of Stalking (Report, August 2021).
-
Ibid.
-
Consultation 34 (Magistrates’ Court of Victoria (No 2)).
-
Ibid.
-
Victoria, Parliamentary Debates, Legislative Assembly, 9 June 2010, 2226–7 (Rob Hulls, Attorney-General).
-
Ibid 2226.
-
Submission 32 (Centre for Forensic Behavioural Science).
-
Dispute Settlement Centre of Victoria, DSCV Assessing Suitability Criteria (Guideline, undated).
-
Personal Safety Intervention Orders Act 2010 (Vic) s 26.
-
Ibid s 33.
-
Consultation 32 (Dispute Settlement Centre of Victoria).
-
Ibid.
-
Ibid.
-
Information provided by Dispute Settlement Centre of Victoria to Victorian Law Reform Commission, 16 March 2022. Data unavailable for 2016/17.
-
Submission 98 (Law Institute of Victoria); Consultation 10 (Victorian Aboriginal Legal Service).
-
Consultation 34 (Magistrates’ Court of Victoria (No 2)).
-
While we do not have current data on this, to illustrate, in 2015/16 it is estimated that 367 court days were saved: Information provided by Dispute Settlement Centre of Victoria to Victorian Law Reform Commission, 16 March 2022.
-
Consultation 32 (Dispute Settlement Centre of Victoria).
-
Ibid.
-
Ibid. DSCV told us that while they used to have 10–12 DAOs they only have one now, as many of their DAOs have been moved to the residential tenancy space because of COVID-19.
-
‘Rural and regional Victoria made up a disproportionately large share of PSIO applications in Victoria: while 24% of Victorians live in rural and regional areas, these areas accounted for 42% of applications (41% in the Magistrates’ Court and 53% in the Children’s Court). This overrepresentation carried through to interim and final orders made and sentenced PSIO breaches, with 42% of cases in the Magistrates’ Court and 65% in the Children’s Court being sentenced in rural and regional locations. While regional Victoria is often overrepresented in a number of measures relating to criminal justice, the extent of the disparity in this instance is particularly apparent, especially in Gippsland and Loddon Mallee.’: Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022) [10.3]–[10.4].
-
Submission 56 (Derryn Hinch’s Justice Party); Stalking Protection Act 2019 (UK) s 1.
-
Police may issue family violence safety notices (without application to the court) if they believe on reasonable grounds that the notice is necessary to ensure the safety, or preserve the property, of the affected family member, or to protect a child who has been subjected to family violence. A family violence safety notice is taken to be an application for a family violence intervention order: Family Violence Protection Act 2008 (Vic) ss 24, 26, 31.
-
Personal Safety Intervention Orders Act 2010 (Vic) s 21.
-
Submissions 56 (Derryn Hinch’s Justice Party), 97 (Federation of Community Legal Centres), 98 (Law Institute of Victoria). The Federation of Community Legal Centres stated that the benefits of police-issued notices need to be balanced against risks such as the potential for these notices to be issued in matters where mediation would have been more appropriate and increasing the number of PSIO matters in court: Submission 97 (Federation of Community Legal Centres). The Law Institute of Victoria noted that it would not support these notices being made against children: Submission 98 (Law Institute of Victoria).
-
Submission 98 (Law Institute of Victoria).
-
Consultations 12 (Domestic Violence Victoria and Domestic Violence Resource Centre Victoria), 13 (Victoria Legal Aid).
-
Consultation 12 (Domestic Violence Victoria and Domestic Violence Resource Centre Victoria).
-
Consultations 6 (Magistrates’ Court of Victoria (No 1)), 13 (Victoria Legal Aid).
-
Submission 97 (Federation of Community Legal Centres); Consultations 10 (Victorian Aboriginal Legal Service), 13 (Victoria Legal Aid). For example, Victoria Police and Women’s Legal Service provide that misidentification rates are around 12 percent and 10 percent respectively: Office of the Family Violence Reform Implementation Monitor, Monitoring Victoria’s Family Violence Reforms: Accurate Identification of the Predominant Aggressor (Report, December 2021) 11 <www.fvrim.vic.gov.au>.
-
Submission 97 (Federation of Community Legal Centres); Consultation 6 (Magistrates’ Court of Victoria (No 1)).
-
Personal Safety Intervention Orders Act 2010 (Vic) s 52; Family Violence Protection Act 2008 (Vic) s 69.
-
Personal Safety Intervention Orders Act 2010 (Vic) s 52(3). See also Family Violence Protection Act 2008 (Vic) ss 1A–3 which sets out similar considerations for family violence orders proceedings.
-
Family Violence Protection Act 2008 (Vic) s 69.This imbalance is starting to change: see, eg, Kieran Rooney, ‘New Changes Introduced to Provide Protection to Victims of Stalking and Threats to Kill’, Herald Sun (online, 9 March 2022) <https://www.heraldsun.com.au/news/victoria/new-changes-introduced-to-provide-protection-to-victims-of-stalking-and-threats-to-kill/news-story/cd9d2339eb8b2c5d3d74ebc62ec9a8bc>; Victims of Crime (Financial Assistance Scheme) Bill 2022 (Vic).
-
Consultation 18 (County Court of Victoria).
-
Consultation 6 (Magistrates’ Court of Victoria (No 1)).
-
Victorian Law Reform Commission, Stalking: Summary of Responses to Online Feedback Form from People with Experience of Stalking (Report, August 2021).
-
Personal Safety Intervention Orders Act 2010 (Vic) s 123(2).
-
Family Violence Protection Act 2008 (Vic) s 166(2).
-
Personal Safety Intervention Orders Act 2010 (Vic) s 123(2); Family Violence Protection Act 2008 (Vic) s 166(2).
-
Personal Safety Intervention Orders Act 2010 (Vic) s 125; Family Violence Protection Act 2008 (Vic) s 169.
-
Submission 36 (Ahmad Masri).
-
Submission 41 (Djirra).
-
Submission 115 (Victoria Police).
-
Family Violence Protection Act 2008 (Vic) s 169B(1)(b). The Act was amended to include this exception in 2014, in order to protect victims’ rights to tell their stories without having to seek court permission, to allow honest and open reporting about the extent of family violence and its impact, and to contribute to perpetrator accountability: Victoria, Parliamentary Debates, Legislative Council, 20 August 2014, 2622 (Edward O’Donohue, Minister for Liquor and Gaming Regulation).
-
Family Violence Protection Act 2008 (Vic) s 169(1).
-
Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic) s 3.
-
Ibid s 3(1BB)(b).
-
Family Violence Protection Act 2008 (Vic) s 70(3).
-
An ‘affected family member’ is, broadly, the person the subject of the application for a family violence intervention order. A ‘protected person’ is ‘a person who is protected by a family violence intervention order or a family violence safety notice or a recognised DVO’: ibid s 4 (definition of ‘affected family member’ and ’protected person’).
-
Ibid s 70(1)-(2).
-
Evidence Act 2008 (Vic) s 41; Personal Safety Intervention Orders Act 2010 (Vic) s 47(2); Family Violence Protection Act 2008 (Vic) s 65(2).
-
Submissions 41 (Djirra), 65 (Code Black Threat Management), 97 (Federation of Community Legal Centres), 98 (Law Institute of Victoria); Consultations 2 (Children’s Court of Victoria (No 1)), 19 (Community legal sector roundtable).
-
Submissions 97 (Federation of Community Legal Centres), 98 (Law Institute of Victoria).
-
Submissions 56 (Derryn Hinch’s Justice Party), 97 (Federation of Community Legal Centres); Consultation 19 (Community legal sector roundtable).
-
Consultation 4 (Sexual Assault Services Network).
-
Submission 115 (Victoria Police). The Federation of Community Legal Centres also stated ‘confrontation with the respondent in court can cause significant distress for victim survivors and can discourage people from applying for a PSIO or continuing with PSIO proceedings.’: Submission 97 (Federation of Community Legal Centres).
-
Consultation 6 (Magistrates’ Court of Victoria (No 1)).
-
Ibid; Consultations 13 (Victoria Legal Aid), 19 (Community legal sector roundtable).
-
Submission 97 (Federation of Community Legal Centres); Consultation 19 (Community legal sector roundtable).
-
Consultations 13 (Victoria Legal Aid), 19 (Community legal sector roundtable).
-
Consultation 13 (Victoria Legal Aid).
-
Ibid.
-
Submission 97 (Federation of Community Legal Centres); Consultations 13 (Victoria Legal Aid), 19 (Community legal sector roundtable).
-
Consultation 19 (Community legal sector roundtable).
-
Consultation 13 (Victoria Legal Aid).
-
Family Violence Protection Act 2008 (Vic) s 71(1).
-
Ibid s 72.
-
Victorian Law Reform Commission, Stalking: Summary of Responses to Online Feedback Form from People with Experience of Stalking (Report, August 2021).
-
Ibid.
-
Submission 70 (Di McDonald).
-
Consultation 12 (Domestic Violence Victoria and Domestic Violence Resource Centre Victoria).
-
Submission 41 (Djirra).
-
Consultation 12 (Domestic Violence Victoria and Domestic Violence Resource Centre Victoria).
-
Submission 97 (Federation of Community Legal Centres).
-
Submission 41 (Djirra).
-
Submission 97 (Federation of Community Legal Centres).
-
Victoria Legal Aid, ‘15 Special Circumstances—The State’s Special Circumstances’, Handbook for Lawyers (Online Handbook, 18 February 2022) <https://www.handbook.vla.vic.gov.au>.
-
Submission 47 (Liberty Victoria).
-
Consultation 13 (Victoria Legal Aid).
-
Victoria Legal Aid, Personal Safety Intervention Orders: Mention Hearing (Self-Help Guide for Applicants, July 2020).
-
Submission 95 (Springvale Monash Legal Service).
-
Submission 97 (Federation of Community Legal Centres).
-
Submission 56 (Derryn Hinch’s Justice Party).
-
Submission 95 (Springvale Monash Legal Service). For example ‘clients living with a mental illness or a learning disability or clients from [culturally and linguistically diverse] backgrounds.’
-
Submission 47 (Liberty Victoria).
-
Submission 95 (Springvale Monash Legal Service).
-
Submission 47 (Liberty Victoria).
-
Submission 49 (Victims of Crime Commissioner).
-
Submission 97 (Federation of Community Legal Centres).
-
Submissions 47 (Liberty Victoria), 95 (Springvale Monash Legal Service).
-
Submissions 47 (Liberty Victoria), 56 (Derryn Hinch’s Justice Party), 95 (Springvale Monash Legal Service).
-
Submissions 41 (Djirra), 47 (Liberty Victoria).
-
Submission 47 (Liberty Victoria).
-
Submissions 49 (Victims of Crime Commissioner), 56 (Derryn Hinch’s Justice Party).
-
Submission 49 (Victims of Crime Commissioner).
-
Department of Justice and Community Safety (Vic), Victim Support Update (Report, December 2021) 23.
-
Submission 36 (Ahmad Masri).
-
Submission 56 (Derryn Hinch’s Justice Party).
-
Ibid; Submissions 97 (Federation of Community Legal Centres), 115 (Victoria Police).
-
Submission 97 (Federation of Community Legal Centres); Consultation 13 (Victoria Legal Aid).
-
Submission 97 (Federation of Community Legal Centres). The Federation of Community Legal Centres explained that filtering ‘occurs through the in-person application process.’
-
Submissions 56 (Derryn Hinch’s Justice Party), 115 (Victoria Police).
-
Submission 98 (Law Institute of Victoria).
-
Consultation 13 (Victoria Legal Aid).
-
Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Act 2022 (Vic) s 119.
-
Consultation 34 (Magistrates’ Court of Victoria (No 2)).
-
Consultation 6 (Magistrates’ Court of Victoria (No 1)).
-
Family Violence Protection Act 2008 (Vic) s 53(1), (1C).
-
Ibid s 53(1)(b).
-
Consultation 34 (Magistrates’ Court of Victoria (No 2)). For example where the bail conditions may not adequately protect a person from the stalking behaviour.
-
Consultation 35 (Children’s Court of Victoria (No 2)).
-
Law Reform Committee, Parliament of Victoria, De Novo Appeals to the County Court (Parliamentary Paper No 230, October 2006) 7–8.
-
Judicial College of Victoria, Personal Safety Intervention Orders Bench Book (Online Manual, 1 September 2011) <https://www.judicialcollege.vic.edu.au/eManuals/PSIO>.
-
Personal Safety Intervention Orders Act 2010 (Vic) s 96(2)(a)–(c) The court can also make a determination under the Family Violence Protection Act 2008 (Vic), or order mediation: s 96(2)(d)–(e).
-
Ibid s 97(1).
-
Law Reform Committee, Parliament of Victoria, De Novo Appeals to the County Court (Parliamentary Paper No 230, October 2006) 4, 191–92. Despite recognising these concerns, the Committee ultimately found that ‘de novo appeals do not disadvantage victims of crime to the extent that would justify a restriction of existing appeal rights’, ‘primarily’ because ‘serious matters involving victims of crime are largely not determined in the Magistrates’ Court’: at 194.
-
Justice Legislation Amendment (Criminal Appeals) Act 2019 (Vic) s 24 : see ss 265A, 265E to be inserted in the Criminal Procedure Act 2009 (Vic). See also Victorian Government, ‘Modernising Victoria’s Appeals System’ (Press Release, 16 October 2019).
-
Victoria, Parliamentary Debates, Legislative Assembly, 17 October 2019, 3686 (Jill Hennessy, Attorney-General).
-
Submission 106 (Dr Steven Tudor & Greg Byrne PSM).
-
They cite the Criminal Procedure Act 2009 (Vic) and Evidence Act 2008 (Vic) in highlighting the admissibility of recorded evidence and prohibition on inappropriate cross-examining: see Michael Stanton and Paul Smallwood, ‘Pause for Thought? The Case for Reversing the Abolition of De Novo Criminal Appeals’ (2021) 169 Victorian Bar News 46, 48.
-
Criminal Procedure Act 2009 (Vic) s 360.
-
Personal Safety Intervention Orders Act 2010 (Vic) s 18.
-
Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022) [3.1].
-
Relating to PSIO applications heard in the Children’s Court.
-
Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022) [3.8].
-
Including in limiting the duration of final orders to 12 months, and requiring the Court to have regard to all the circumstances of the case before including a condition that would exclude them from their residence: Personal Safety Intervention Orders Act 2010 (Vic) ss 71, 78. Although the Children’s Court told us that it would be very rare to have a condition excluding a child from their residence: Consultation 2 (Children’s Court of Victoria (No 1)).
-
See, eg, Royal Commission into the Protection and Detention of Children in the Northern Territory (Report Overview, November 2017).
-
Consultation 5 (Harmful Sexual Behaviours Network).
-
Consultation 17 (Small group meeting on stalking and young people).
-
Consultation 36 (Forensicare (No 2)).
-
Consultation 13 (Victoria Legal Aid).
-
For example, the Children’s Court provided us with a case study that detailed ongoing behaviours between two 13-year-old boys, which was of sufficient seriousness to warrant an urgent interim PSIO being made ex parte. It included physical and verbal abuse, racial slurs, publishing personal details and the address of the victim: Consultation 35 (Children’s Court of Victoria (No 2)).
-
Rosemary Purcell, Teresa Flower and Paul E Mullen, Adolescent Stalking: Offence Characteristics and Effectiveness of Criminal Justice Interventions (Final Report to Criminology Research Council, November 2008) 24. For a discussion on this study and its findings: see Karl Roberts, Marina Tolou-Shams and Kaila Madera, ‘Adolescent versus Adult Stalking: A Brief Review’ (2016) 16(4) Journal of Forensic Psychology Practice 236, 247.
-
Rosemary Purcell, Teresa Flower and Paul E Mullen, Adolescent Stalking: Offence Characteristics and Effectiveness of Criminal Justice Interventions (Final Report to Criminology Research Council, November 2008) 25. For a discussion on this study and its findings: see Karl Roberts, Marina Tolou-Shams and Kaila Madera, ‘Adolescent versus Adult Stalking: A Brief Review’ (2016) 16(4) Journal of Forensic Psychology Practice 236, 248.
-
R v ALH [2003] VSCA 129, (2003) 6 VR 276, [75].
-
Consultation 13 (Victoria Legal Aid).
-
Submission 98 (Law Institute of Victoria).
-
Consultation 10 (Victorian Aboriginal Legal Service).
-
RP v The Queen [2016] HCA 53, (2016) 259 CLR 641, [8].
-
Enys Delmage, ‘The Minimum Age of Criminal Responsibility: A Medico-Legal Perspective’ (2013) 13(2) Youth Justice 102, 108. For her review of this evidence, tracing the evolution of neuroscience, particularly child brain development in the last few decades: see ibid 105–7.
-
Chris Cunneen, Arguments for Raising the Minimum Age of Criminal Responsibility (Research Report, Comparative Youth Penalty Project, Jumbunna Institute for Indigenous Education and Research, University of Technology Sydney, February 2020) 12. For similar conclusions: see Nicholas J Lennings and Chris J Lennings, ‘Assessing Serious Harm under the Doctrine of Doli Incapax: A Case Study’ (2014) 21(5) Psychiatry, Psychology and Law 791, 794; Nicola C Newton and Kay Bussey, ‘The Age of Reason: An Examination of Psychosocial Factors Involved in Delinquent Behaviour’ (2012) 17(1) Legal and Criminological Psychology 75, 86–87 (this study found that a large majority of children ‘demonstrated sophisticated knowledge of what is right versus wrong involving criminal transgressions’, but that even with this knowledge ‘children and adolescents … can be hindered from making intelligent decisions through the influence of psychosocial factors involved in criminal decision-making’); Barry Goldson, ‘“Unsafe, Unjust and Harmful to Wider Society”: Grounds for Raising the Minimum Age of Criminal Responsibility in England and Wales’ (2013) 13(2) Youth Justice 111, 117 (broadly making the point about the development of scientific literature that enables us to see the complex influences on child development, and the troubling implications for a low age of criminal responsibility); Wendy O’Brien and Kate Fitz-Gibbon, ‘The Minimum Age of Criminal Responsibility in Victoria (Australia): Examining Stakeholders’ Views and the Need for Principled Reform’ (2017) 17(2) Youth Justice 134, 138–40, 143; Thomas Crofts, ‘A Brighter Tomorrow: Raise the Age of Criminal Responsibility’ (2015) 27(1) Current Issues in Criminal Justice 123, 127–8; National Legal Aid, Council of Attorneys-General—Age of Criminal Responsibility Working Group Review (Submission, 28 February 2020) 5–7.
-
Sentencing Advisory Council (Vic), Sentencing Children and Young People in Victoria (Report, April 2012) 11.
-
The Sentencing Advisory Council explains that ‘ultimately, the assumption [underlying the concept of deterrence] that child offenders make a rational choice to engage in a particular course of conduct does not sit well with … the research on adolescent brain development … Children are assumed to “lack the degree of insight, judgement and self-control that is possessed” by adult (rational) persons and may act impulsively “on the ‘spur of the moment’” without weighing up the consequences of their actions’: ibid 60–1 (citations omitted). See also Andrew McGrath, ‘Offenders’ Perceptions of the Sentencing Process: A Study of Deterrence and Stigmatisation in the New South Wales Children’s Court’ (2009) 42(1) Australian and New Zealand Journal of Criminology 24, 42 (‘while a court appearance does appear to have some deterrent effect [on youth offenders], it also has the potential to exacerbate subsequent offending by stigmatising individual offenders’).
-
Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022) 15.
-
Personal Safety Intervention Orders Act 2010 (Vic) s 67.
-
Consultation 10 (Victorian Aboriginal Legal Service).
-
Sentencing Advisory Council (Vic), Reoffending by Children and Young People in Victoria (Report, December 2016) 30–1; National Legal Aid, Submission to Council of Attorneys-General, Age of Criminal Responsibility Working Group Review (28 February 2020) 10–11; Chris Cunneen, Arguments for Raising the Minimum Age of Criminal Responsibility (Research Report, Comparative Youth Penalty Project, Jumbunna Institute for Indigenous Education and Research, University of Technology Sydney, February 2020) 19–21, 26; Wendy O’Brien and Kate Fitz-Gibbon, ‘The Minimum Age of Criminal Responsibility in Victoria (Australia): Examining Stakeholders’ Views and the Need for Principled Reform’ (2017) 17(2) Youth Justice 134, 135.
-
Consultation 35 (Children’s Court of Victoria (No 2)).
-
Ibid.
-
Ibid. For the number of interim and final PSIOs issued in the Children’s Court: see Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022) 16, Figure 3.
-
Consultation 35 (Children’s Court of Victoria (No 2)).
-
Personal Safety Intervention Orders Act 2010 (Vic) s 100.
-
As is the approach in the Children’s Court: Consultation 35 (Children’s Court of Victoria (No 2)).
-
Ibid; Consultation 36 (Forensicare (No 2)).
-
Consultation 36 (Forensicare (No 2)).
-
Ibid.
-
Ibid.
-
Ibid.
-
Consultation 13 (Victoria Legal Aid).
-
Consultation 17 (Small group meeting on stalking and young people).
-
Ibid.
-
Rosemary Purcell, Teresa Flower and Paul E Mullen, Adolescent Stalking: Offence Characteristics and Effectiveness of Criminal Justice Interventions (Final Report to Criminology Research Council, November 2008) 29.
-
Sinead Cloonan-Thomas, Elizabeth S Daff and Troy E McEwan, ‘Post-Relationship Stalking and Intimate Partner Abuse in a Sample of Australian Adolescents’ [2021] Legal and Criminological Psychology 10.1111/lcrp.12206:1–22, 20.
-
See ibid.
-
Rosemary Purcell and Troy McEwan, ‘Treatment Approaches for Stalking’ in Jane L Ireland, Carol A Ireland and Philip Birch (eds), Violent and Sexual Offenders: Assessment, Treatment and Management (Routledge, 2nd ed, 2018) 400, 411.
-
Consultation 36 (Forensicare (No 2)). A therapeutic treatment order is an order issued by the family division of the Children’s Court of Victoria. It requires a child aged at least 10 years and under 15 years of age to attend community-based treatment for problem sexual behaviours. The child does not need to be charged or found guilty of a sexual offence: Children, Youth and Families Act 2005 (Vic) ss 248 –9.
-
Consultation 35 (Children’s Court of Victoria (No 2)).
-
Personal Safety Intervention Orders Act 2010 (Vic) s 61(1)(c).
-
Ibid s 61(2).
-
Ibid s 53.
-
Ibid s 57.
-
Ibid s 64(2).
-
Ibid s 71.
-
Ibid ss 74–5.
-
Consultation 13 (Victoria Legal Aid).
-
Ibid.
-
Ibid.
-
Submission 98 (Law Institute of Victoria).
-
Consultation 35 (Children’s Court of Victoria (No 2)).
-
Ibid.
-
Family Violence Protection Act 2008 (Vic) ss 82–4.
-
Consultation 13 (Victoria Legal Aid).
-
Rosemary Purcell, Teresa Flower and Paul E Mullen, Adolescent Stalking: Offence Characteristics and Effectiveness of Criminal Justice Interventions (Final Report to Criminology Research Council, November 2008) 6.
-
Submission 49 (Victims of Crime Commissioner).
-
Consultation 35 (Children’s Court of Victoria (No 2)).
-
Victoria Legal Aid, Prioritising Help for Children in Personal Safety Intervention Order Matters (Web Page, 21 July 2020)
<https://www.legalaid.vic.gov.au/prioritising-help-children-personal-safety-intervention-order-matters>. -
Consultation 35 (Children’s Court of Victoria (No 2)). See Family Violence Protection Act 2008 (Vic) s 62.
-
Consultation 20 (Law Institute of Victoria).
-
The equivalent provision in the family violence context is Family Violence Protection Act 2008 (Vic) s 62. In the family violence terminology, the child is an affected family member.