Table of Contents
What is a Counselling Order?
In the context of Family Violence Intervention Order proceedings a Counselling Order is an Order made by a Magistrate under Part 5 of the Family Violence Protection Act 2008 (Vic) (The Act).
The object of Counselling Orders made purusant to Part 5 are set out under Section 127 of the Act:
To provide for a relevant court to make orders to assess the eligibility of certain respondents for counselling; and
If appropriate, to require a respondent to attend counselling for the purpose of:
(a) increasing the respondent's accountability for the violence the respondent has used against a family member; and (b) encouraging the respondent to change the respondent's behaviour.
Definitions
"Relevant court" under the Act means:
The Specialist Family Violence Court Division.
The Magistrates' Court sitting at a venue of the Court specified by the Minister by notice published in the Government Gazette; or
The Children's Court sitting at a venue of the Court specified by the Minister by notice published in the Government Gazette.
"Specialist Family Violence Court Division"
In Victoria, several Specialist Family Violence Courts operate:
'counselling' is directed pursuant to Section 133 of the Act, and a Magistrate makes a referral to a respondent to complete counselling from a 'list of approved counselling".
In practice the program is a Men’s Behaviour Change Program from services providers who are appropriately accredited to provide the program.
Eligibility for assessment does not require an admission of responsibility by a respondent, not does it require a finding that family violence has occurred.
The basis upon which an Final Family Violence Order (FV IVO)is made is a finding of family violence pursuant to the test under section 74 of the Act:
the respondent has committed family violence against the affected family member (on the balance of probabilities); AND
the respondent is likely to continue to do so or do so again.
Another basis upon which a Final Order for a final FV IVO is made is by consent under section 78 of the Act.
A respondent's consent to a Final FV IVO, does not require admission of the allegations that underpin the application. Accordingly, a respondent may consent without admission to a Final FV IVO, and it will often be sensible to do so.
It is important to note however that a consent without admission will not prevent a court from making an Order for a respondent to be assessed for suitability for counselling as the eligibility does not require either an admission of responsibility by the respondent, or a finding by the Court that family violence occurred.
If the family violence intervention order proceedings are underway before a Specialist Family Violence Court, then pursuant to Section 129 of the Act, the order for a counselling is mandatory upon a Final Order being made.
It is an offence for a respondent not to attend for counselling as ordered (Section 129(5) of the Act), and a maximum of 10 penalty units applies.
What Does The Assessor Consider?
Section 129 of the Act requires the Court to refer the respondent to a counselling assessor to determine their eligibility of assessment. In practice, the respondent will be given a date and time to attend the assessment, the location will usually be the Court that makes the Order.
The assessment in terms of whether a respondent is or is not eligible does not turn upon whether they committed the acts of alleged family violence contained in the application, or their attitude to completing a course of counselling, indeed the assessor must consider the respondent eligible unless any of the following factors under Section 129(3) might make him ineligible:
the respondent's character, personal history, or language skills.
any disabilities of the respondent.
any severe psychiatric or psychological conditions of the respondent.
any alcohol or other drug problems of the respondent.
where they live (specially their post code).
any other matters the counselling assessor considers relevant
A Men’s Behaviour Change Course typically runs for approximately 20 weeks.
Can a Counselling Order be Appealed, Varied, or Revoked?
If a FV IVO is appealed, to the County Court a counselling order is stayed pending the outcome of that appeal (see sections 114, 117 and 131 of the Act).
Section 137 sets out the basis upon which Orders under section 129 (Order to attend for assessment) and section 130 (to complete counselling) may be varied or revoked:
there is no longer any approved counselling that is reasonably practicable for the respondent to attend; or
in all the circumstances of the case, the order is no longer appropriate for any other reason; or
there has been a change in the circumstances in which the order was made that significantly impacts on the respondent's ability or capacity to participate in counselling (section 130 only).
Conclusion
In many cases a consent without admission approach to resolving a Family Violence Intervention Order will be a pragmatic means of avoiding protracted court proceedings, and may well avoid other adverse consequences in the family law and criminal law jurisdictions.
Respondents must be aware that when appearing before a Specialist Family Violence Court, that an assessment for eligibility for a counselling order does not depend upon any finding as to whether family violence did or did not occur.