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Personal Safety Intervention Orders
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Have you been charged with offences concerning a Personal Safety Intervention Order?
Or have you been summonsed or bailed to appear in court in relation to a Personal Safety Notice?
If so, you should consult a lawyer with experience in this area of the law.
Dribbin & Brown have offices in Dandenong, Ringwood, Frankston, Geelong, Ballarat, Moorabbin and in the Melbourne CBD near the local courts. We appear regularly at these courts, representing clients dealing with matters concerning the Personal Safety Intervention Orders Act 2010.
See Offence for Contravention of Personal Safety Intervention Order if you are facing charges. Or read on for more on personal safety intervention orders.
The Personal Safety Intervention Order Act 2010
The primary purposes of the Victorian Personal Safety Intervention Order Act 2010 (PSIO Act) are:
- to protect the safety of victims of assault, sexual assault, harassment, property damage or interference with property, stalking and serious threats; and
- to promote and assist in the resolution of disputes through mediation where appropriate (s 1).
The PSIO Act aims to achieve these purposes by:
- providing access to personal safety intervention orders
- encouraging the use of mediation to assist in the resolution of disputes where appropriate; and
- creating an offence for contravention of a personal safety intervention order.
What is a personal safety intervention order?
A personal safety intervention order is made by a Magistrate to protect a person from physical or mental harm caused by someone who is not a family member.
The order that a Magistrate makes imposes conditions about how the respondent (the person the subject of the order) must behave towards the applicant and protected persons.
What is the difference between a Family Violence and a Personal Safety IVO?
Family members being protected from other family members must apply for a Family Violence Intervention Order. In contrast, unrelated parties must apply for a Personal Safety Intervention Order.
The charges in relation to Family Violence Protection Orders can be more serious than Personal Safety Intervention Orders. See here for more information on breaching Family Violence Intervention Orders.
How to get a personal safety intervention order
An applicant must attend the proper venue (the Children’s Court or Magistrates’ Court) to make an application for an intervention order. The process of applying for a Personal Safety Intervention Order is the same as applying for a Family Violence Intervention Order. The police can apply for a Personal Safety Intervention Order on behalf of a person, or a person can make their own application to the Magistrates’ Court.
An application can be made by any person to the Magistrates’ Court by filing the relevant paperwork at the intervention order registry at their local court. An appointment is usually made with the Registrar, who will go through the application with the applicant and then list the matter before a Magistrate who will determine whether an interim order should be made.
Depending on whether the court is satisfied on the balance of probabilities that an interim order is required to preserve the property of the affected person or to ensure the safety of the protected person, the court may grant an interim order. An interim order has the full force of a full order.
When will the court impose a personal safety intervention order?
The court may make a final personal safety intervention order if the court is satisfied of matters in s 61 of the Personal Safety Intervention Orders Act 2010 (PSIO Act).
s 61 Power of court to make final order
(1) The court may make a final order if the court is satisfied, on the balance of probabilities, that—
(a) the respondent has—
(i) committed prohibited behaviour against the affected person and—
(A) is likely to continue to do so or do so again; and
(B) the respondent’s prohibited behaviour would cause a reasonable person to fear for his or her safety; or
(ii) stalked the affected person and is likely to continue to do so or do so again; and
(b) the respondent and the affected person are not family members; and
(c) it is appropriate in all the circumstances of the case to make a final order.
s 5 Meaning of prohibited behaviour
Prohibited behaviour is—
- Assault;
- Sexual assault;
- Harassment;
- Property damage or interference; or
- Making a serious threat.
Part 2 of the PSIO Act sets out the definitions of each of the above.
What conditions can be included in a personal safety intervention order?
The Court can include many different conditions on a personal safety order. S 67 of the PSIO Act outlines conditions that can be imposed.
s 67 Conditions to be included in a personal safety intervention order
(1) The court may include in a personal safety intervention order any conditions that appear to the court necessary or desirable in the circumstances.
(2) Without limiting subsection (1), a personal safety intervention order may include conditions—
(a) prohibiting the respondent from committing prohibited behaviour against the protected person; and
(b) prohibiting the respondent from stalking the protected person; and
(c) excluding the respondent from the protected person’s residence; and
(d) prohibiting the respondent from approaching, telephoning or otherwise contacting the protected person, unless in the company of a police officer, dispute assessment officer, mediator or a specified person; and
Examples
1 Emailing the protected person.
2 Sending text messages to the protected person.
(e) prohibiting the respondent from being anywhere within a specified distance of the protected person or a specified place, including the place where the protected person lives; and
(f) prohibiting the respondent from causing another person to engage in conduct prohibited by the order; and
(g) revoking or suspending a weapons approval held by the respondent or a weapons exemption applying to the respondent as provided by section 69; and
(h) cancelling or suspending the respondent’s firearms authority as provided by section 69.
(3) If the respondent is a child, the court may only make a condition excluding the respondent from the protected person’s residence in accordance with section 71.
Interim Personal Safety IVOs
Once an applicant has lodged the relevant paperwork at the Magistrates’ Court, the matter will be listed before a Magistrate or a Registrar to determine whether an interim order should be put in place and what conditions, if any, are necessary to protect the applicant.
A Magistrate is not guaranteed to put an interim order in place. Usually, in practice, a Magistrate will read the application and then hear evidence in open court from the applicant before deciding whether an interim order is required.
S 35 of the PSIO Act outlines the circumstances that a Magistrate must consider when determining whether an interim order should be put in place.
S 35 Court may make interim order
(1) The court may make an interim order if a person has applied to the court for a personal safety intervention order and the court is satisfied—
(a) on the balance of probabilities, that an interim order is necessary pending a final decision about the application—
(i) to ensure the safety of the affected person; or
(ii) to preserve any property of the affected person; and
(b) that it is appropriate to make the order in all the circumstances of the case.
What happens if an interim intervention order is not put in place?
If a Magistrate does not put an interim intervention order in place, the matter will remain listed in court and adjourned to another court date. On the next court date, the respondent will have the opportunity to appear in court and provide their position in relation to the application.
If an interim order is not made initially, this does not necessarily mean that a Magistrate will not make an interim order later in the proceedings (for example, if there is fresh evidence of prohibited behaviour that can be provided to the court).
Having a specialised criminal lawyer is essential in these applications. Please arrange an appointment today if you need assistance obtaining an interim order.
Can an interim order be made in the absence of the respondent?
Yes, an interim order can be made in the respondent’s absence. If you are the respondent and know your court date, we will always advise that you are present or have a lawyer appear on your behalf.
What is a final intervention order?
A final intervention order is a final order made by a Magistrate in the Magistrates’ Court for a period of time. While the duration of the order can be agreed between parties, the length of the order is always a court decision. S 77 of the PSIO Act outlines what the court must have regard to when deciding as to the period for which the final order is to be in force.
S 77 Court may specify period for which order in force
(1) The court may specify in a final order the period for which the order is in force.
(2) In making a decision as to the period for which the final order is to be in force, the court must take into account—
(a) any assessment by the applicant of the level and duration of the risk from the respondent; and
(b) if the applicant is not the protected person, the protected person’s views, including the protected person’s assessment of the level and duration of the risk from the respondent.
(3) The court may also take into account any matters raised by the respondent that are relevant to the duration of the order.
What does it mean to consent to an intervention order without making admissions?
If a respondent consents to an intervention order, they can do so without ‘making admissions.’ This means that while they agree to an intervention order being put in place, they do not agree to any of the allegations made that form the basis of the application. What usually occurs in practice is a Magistrate will note out loud in court and on the court file that ‘no admissions have been made by the respondent.’
Can I get my firearms back now that I have an intervention order against me?
If you have a final intervention order where you are the respondent, you will be a prohibited person under s 3 of the Firearms Act and s 3 of the Controlled Weapons Act 1990 (Vic). When an intervention order is put in place, the respondent’s firearm licence is automatically suspended, and the police have the power to seize all firearms and ammunition and remove them from a respondent’s home.
A prohibited person with an intervention order in place will remain prohibited from possessing and using firearms for the duration of the final intervention order plus a further 5 years.
If a final intervention order has been consented to or put in place by a court that precludes a firearm’s condition, an application can be made to the court under s 189 of the Firearms Act for the respondent to become a non-prohibited person so that they can possess and use their firearms again legally. This application is something we can assist you with. Please call our office today to arrange an appointment.
See ‘Application to be deemed not a Prohibited Person‘ for more.
Is it possible to strike out a personal safety intervention order?
Yes, it is 100% possible to strike out a Personal Safety Intervention Order, and our lawyers have done so on many occasions. However, it does depend entirely on the case we are dealing with.
Under Rule 6.02 of the Magistrates’ Court (Personal Safety Intervention Order) Rules 2011 an application can be made to strike out a proceeding if it is:
(a) is scandalous, frivolous or vexatious; or
(b) may prejudice, embarrass or delay the fair hearing of the proceeding; or
(c) is otherwise an abuse of the process of the Court—
the Court may order that the whole or part of the application be struck out or amended.
See ‘Frivolous Intervention Orders‘ for more.
What is an undertaking?
In proceedings for intervention orders, it is often the case that parties negotiate a resolution by agreeing to an undertaking or mutual undertakings in the case of cross applications.
An intervention order is a court order, which means if a respondent breaches the order, there are consequences for breaching the order, such as criminal charges, which could result in a criminal conviction.
An undertaking is not a legally binding document, meaning that if the conditions are breached, there are no criminal consequences, such as breach proceedings. However, if a party enters into an undertaking and it is not complied with while it is in force, then the affected party has an automatic right to come back to court to reinstate the undertaking or apply for another intervention order.
How do I request an undertaking?
An undertaking is a formal agreement usually negotiated and prepared by lawyers and signed by each party. If you want to negotiate an undertaking in an intervention order matter, please get in touch with our office today, and we can assist you.
What is a cross application?
A cross application can be made at any time by a respondent with an intervention order against them. The application is made to the intervention order registry and listed simultaneously as the other pending application.
When it is impossible to settle an application representing a respondent, we usually advise our clients to lodge a cross application where there is merit in doing so. It is typically the case that when this happens, the other party is more willing to negotiate a reasonable agreement with our client, whether that be by mutually withdrawing each application or agreeing to mutual undertakings.
However, it depends on the case we are dealing with, and there are circumstances where we would not recommend making a cross application.
If you are considering making a cross application, please get in touch with our office today for advice.
Can I make an application to extend a current intervention order that is in place?
Yes, an application can be made to extend an intervention order that is due to expire to make the order for a longer duration. An application must be made at least 4 weeks prior to the intervention order expiring. An application is made to your local Magistrate’s Court. The applicant is required to complete a form, and the registry will list the application similarly to an initial application (whereby a magistrate will read the application and hear evidence from the applicant at Court). A Magistrate will then determine whether an interim order is required for immediate protection.
Personal safety intervention order appeals and rehearings
Appealing a Personal Safety Intervention Order
Yes, a party to a final Personal Safety Intervention Order may appeal against an order or a refusal of the court to make an order (s 91 PSIO Act). However, there is no right to appeal in relation to an interim Personal Safety Intervention Order (s 91(2)(b)).
An intervention order finalised in the Magistrates’ Court is generally appealed to the County Court (s 92). The County Court hears Personal Safety Intervention Order appeals on the following grounds:
- the making or variation of an intervention order;
- the conditions of an intervention order;
- the refusal to make an intervention order; or
- the refusal to impose certain conditions in an intervention order (see the County Court Intervention Order Appeals Information Sheet).
An appeal of an intervention order does not generally stay the operation of an intervention order (s 91). However, the court may stay the operation of an intervention order pending the determination of the appeal upon application (s 91(2)).
Notice of appeal
A person appeals by filing notice of the appeal with the Magistrates’ Court within 30 days after the relevant decision was made (s 93). The registrar must then serve notice of the appeal on other parties (s 93(3)). The court does not have jurisdiction to hear matters out of time.
See the case of Austin v Dobbs [2019] VSC 355, in which the Court of Appeal concluded that the Magistrates’ Court has no power to extend the time contained in s 93 to bring an appeal against Personal Safety Intervention Orders.
First Listing hearing
When lodging an appeal at the Melbourne County Court, you will likely be provided with a ‘First Listing’ hearing date, place and time, and copies of the notice of appeal. This First Listing hearing (similar to a mention) occurs about 21 days after an appeal is lodged.
The First Listing hearing will be conducted before a Judge to determine the issues, how many witnesses will be called and if the matter can be resolved. A date for the appeal hearing will then be provided.
Appeal hearing
At the County Court appeal hearing, the Judge will hear evidence from both parties before deciding. The Judge may:
- confirm the personal safety intervention order; or
- set aside the personal safety intervention order; or
- vary the conditions of the personal safety intervention order.
Law on appealing a Personal Safety Intervention Orders
See the following provisions under the Personal Safety Intervention Orders Act 1010 (Vic) for more on the appeals process:
- Who may appeal – s 91 PSIO Act
- Court to which appeal must be made – s 92 PSIO Act
- Notice of appeal – s 93 PSIO Act
What if I was unaware of the Family Violence Intervention Order application?
If you are a respondent to a final personal safety intervention order, and the application for the order was not personally served on you or brought to your attention, you may apply for a rehearing under s 99(1) of the PSIO Act.
The respondent for a final order may also apply for a rehearing if there are exceptional circumstances and a rehearing is fair and just in the circumstances (s 99(1)(b)).
A rehearing is different from an appeal of the Magistrates’ decision to the County Court as it allows the respondent to have the matter reheard by a Magistrate.
S 99 Rehearing of certain proceeding
(1) The respondent for a final order may, in accordance with the rules, apply to the court for a rehearing of the proceeding only if—
(a) the application for the order—
(i) was not personally served on the respondent; and
(ii) was not brought to the respondent’s attention under an order for substituted service; or
(b) there are exceptional circumstances and a rehearing is fair and just in all the circumstances of the case.
(2) If the court is satisfied, on the balance of probabilities, that the grounds referred to in subsection (1) have been established, the court may rehear the matter.
(3) An application under this section does not operate as a stay of the final order.
(4) If an applicant under this section fails to attend at the time fixed for the hearing of the application and the application is struck out, the applicant may reapply only with the leave of the court.
Revocation and variations of intervention orders
s 80 of the PSIO Act outlines the power of the court to vary or revoke a personal safety intervention order. s 85 of the PSIO Act outlines who may make an application to vary, extend or revoke an intervention order.
S 80 Power of court to vary or revoke personal safety intervention order
(1) The court may order the variation or revocation of a personal safety intervention order on an application under this Division.
(2) In deciding whether to make an order under subsection (1), the court must have regard to all the circumstances of the case and, in particular, the following—
(a) the applicant’s reasons for seeking the variation or revocation;
(b) the safety of the protected person;
(c) the protected person’s views about the variation or revocation;
(d) whether or not the protected person is legally represented;
(e) if the protected person has a guardian, the guardian’s views.
(3) If the court decides not to grant an application for the revocation of a personal safety intervention order, the court may instead order the variation of the intervention order in the way the court considers appropriate.
How can I vary my intervention order?
It is very difficult to vary an intervention order without the consent of the applicant. In the event that the police applied for the personal safety intervention order, we are required to make contact with the police in advance of any application to vary an intervention order. Usually, if the request is reasonable and the police will agree to vary the application, the application is very straightforward and is granted by the Court (see s 87(1) PSIO Act).
If the application to vary the order cannot be made by consent, then the application must be made in writing using the appropriate form. Leave must be granted by a Magistrate prior to any variation being made under s 86(1). Leave can only be granted if the court accepts that there has been a change in circumstances and the change justifies revocation or variation (s 86(2)).
Running a personal safety intervention order contested hearing
There are a number of aspects that differ to the usual Court procedure when running a Personal Safety Intervention Order as a contested hearing. These can be found in the Personal Safety Intervention Order Act 2010, as follows:
- S 45 Hearing may relate to more than one application
- S 46 Circumstances where affected person to be heard separately
- S 47 Evidence
- S 48 Evidence may be given by affidavit or sworn or affirmed statement
- S 49 Evidence given by children
- S 50 Court may issue warrant to arrest for witness who fails to appear
- S 51 Court may close proceeding to public
- S 52 Alternative arrangements for proceeding
Costs
I have a Personal Safety Intervention Order that has been brought in bad faith. If it gets withdrawn, can I seek costs from the Court?
S 111 of the Personal Safety Intervention Orders Act 2010 (PSIO Act) states that “each party to a proceeding for a personal safety intervention order must bear the party’s own costs of the proceeding.” However, there are exceptions to this where a court may order costs against a party in certain circumstances, such as where an application is determined to be vexatious, frivolous or made in bad faith.
See ‘Frivolous Intervention Orders‘ for more.
S 111 Costs
(1) Each party to a proceeding for a personal safety intervention order under this Act must bear the party’s own costs of the proceeding.
(2) In a litigation restraint order proceeding—
(a) if a person is made subject to an extended litigation restraint order or an acting in concert order, that person must bear the costs of the proceeding, other than the Attorney-General’s costs if the Attorney-General is a party to the proceeding; and
(b) if a person is not made subject to an extended litigation restraint order or an acting in concert order, each party must bear the party’s own costs.
(3) Despite subsections (1) and (2)—
(a) the court may make an order about costs if the court decides that exceptional circumstances warrant otherwise in a particular case; or
(b) if the court is satisfied in a particular case that the making of any application under this Act was vexatious, frivolous or in bad faith, the court may award costs against the applicant.
(4) If the court decides there are grounds to award costs against a person but the person is not present in court, the court may—
(a) adjourn the proceeding; and
(b) give the parties to the proceeding notice that an order for costs will be made on the next mention date unless the party against whom the costs will be awarded contests the making of the order on the mention date.
