Personal Safety Intervention Orders

Transcription

1 Personal Safety Intervention Orders A guide to resolving disputes and protecting your safety. This booklet is about personal safety intervention orders, which can help protect you from threats and violence caused by neighbours, friends, work colleagues, or strangers.

2 Produced by Magistrates Court of Victoria Magistrates Court of Victoria 233 William Street GPO Box 882G Melbourne VIC Acknowledgement This publication is based on the Safe at Home and How to respond to a family violence intervention order publications. Magistrates Court of Victoria appreciates and acknowledges the assistance and contribution made by Victoria Legal Aid in the development of this information booklet. Disclaimer The information in this booklet is to be used as a guide only. Legal advice should be sought in relation to individual circumstances. To the extent permitted by law, the Department of Justice and its employees are excluded from liability (including liability by reason of negligence) for any loss, damage, cost or expense, whether direct, indirect, consequential or specific caused by use or reliance on this booklet.

3 Contents Information about this booklet... 4 What do these words mean?... 5 Personal safety intervention orders: an introduction... 6 Stalking and prohibited behaviours... 7 Mediation... 9 Getting help What to do if you need an intervention order What if someone has applied for a personal safety intervention order against you? Going to court Coming to court for the first hearing A magistrate may direct you to try mediation Contested hearings Final personal safety intervention orders What if the respondent is under 18? Living with an intervention order Where to get help and contact information Personal Safety Intervention Orders 3

4 Information about this booklet This booklet gives you information about mediation applying for a personal safety intervention order responding to a personal safety intervention order what happens at court where you can get help If a family member has been violent towards you or you feel unsafe in your home, you may be able to apply for a family violence intervention order. Information about these orders can be found in the Safe at Home and How to respond to a family violence intervention order brochures. You can also contact your local Magistrates Court for assistance. If you need to know about personal safety intervention orders in the Children s Court refer to the What if the respondent is under 18? on page 22 for more information. 4

5 What do these words mean? Adjourn this is when the date of the hearing is changed to a later date Affected person the person who is named in the application for an intervention order who needs protection. If an intervention order is made, this person is called the protected person Applicant the person who is asking for the order. This can be the affected person, or someone else, like a police officer or parent Application this is the form that the applicant completes when asking for an intervention order. It will have information about who wants the intervention order and why, and what type of intervention order they are seeking Bail an obligation that you will go to court on a certain day. You may also have to agree to conditions about your behaviour Contested hearing this is a court hearing that happens when the applicant and respondent cannot agree if an order should be made Contravention when the respondent does not follow the conditions of the order Criminal record a police record of the crimes a person has been found guilty of Dispute Assessment Officer (DAO) a person who speaks with the applicant and respondent to assess if the dispute is suitable for mediation Duty lawyer a lawyer from Victoria Legal Aid or a Community Legal Centre who may be able to give you free legal advice at court. Evidence information used in court to support your story and help the magistrate make a decision Magistrate the person who makes decisions in the Magistrates Court and the Children s Court Personal Safety Intervention Order a court order to protect the affected person, their children and their property, from the respondent s behaviour. It has a list of conditions that the respondent must follow Prohibited behaviour is assault, sexual assault, harassment, property damage or a serious threat Registrar a person who works for the court, and can provide you with information on court process and procedures. Respondent the person who the application for an intervention order has been made against Stalking is if a person repeatedly does things that causes another person harm or makes them fear for their safety Summons a court form that tells a person they should go to court Undertaking a promise, made to the court Warrant a court document that allows the police to arrest a person and hold them in custody Witness a person who gives evidence in a court hearing

6 Personal safety intervention orders an introduction Personal safety intervention orders may assist if you have a dispute with your neighbour, friend, work colleague, employer, employee, tenant, landlord, trader, or even a stranger. If someone is stalking you, or has been violent or has threatened you with violence, you may be able to apply for a personal safety intervention order. If your dispute is not violent, and there is no risk to your safety, then you may be able to take part in mediation. Please refer to the Mediation section for more information. Contact your local Magistrates Court or the police to apply for a personal safety intervention order. 6

7 Stalking and prohibited behaviours Information for applicants and respondents What is stalking? Stalking is when a person does something repeatedly that causes you harm or to fear for your safety. A person can stalk someone by following them, contacting them, putting things on the internet about them, hanging around outside their home or work, or acting offensively towards them. What is prohibited behaviour? Prohibited behaviour includes assaulting someone sexually assaulting someone continually harassing someone repeatedly and intentionally damaging or interfering with someone s property making a serious threat to kill or injure someone. If someone has stalked you or they have committed prohibited behaviour towards you, then they may have committed a criminal offence. If you believe someone has committed a crime, you can report it to the police. What is a personal safety intervention order? A personal safety intervention order is a court order made by a magistrate in the Magistrates Court. An intervention order protects a person from someone who makes them feel unsafe. An order has a list of conditions that tells the respondent what they cannot do, including stopping them from contacting or threatening the protected person, coming near the protected person or their home, and from damaging their property. You can speak with the court about what conditions might be on the order. There are two types of personal safety intervention orders An interim order an urgent temporary order to protect the protected person until a magistrate can hear all the evidence and make a final decision A final order a longer term order made by a magistrate at the final hearing A magistrate may make a personal safety intervention order if it is necessary for the affected person s safety and to protect their property. Personal Safety Intervention Orders 7

8 Who can apply for a personal safety intervention order? Anyone can apply for a personal safety intervention order if they have been assaulted, sexually assaulted, harassed, threatened or stalked by another person, or if another person has continually damaged their property. If the person doing these things is a family member, you may need to apply for a family violence intervention order. The Safe at Home booklet has more information about these types of intervention orders. You can find Safe at Home on the Victoria Legal Aid website, What should you think about before going to court? Intervention orders are serious. To get an intervention order you go through a legal process and must go to court. Make sure you have all relevant information before applying for an intervention order. You may want to think about other options to an intervention order before going to court. If you have a non-violent interpersonal dispute, the court may want you to try mediation, before proceeding with your application for an intervention order. 8

9 Mediation Information for applicants and respondents What is mediation? Mediation can be used to resolve a non-violent dispute. The Dispute Settlement Centre of Victoria provides a free, mediation service. The mediator assists parties to talk about their issues and work out solutions. Parties can make their own agreement, that will work for them. Is your dispute suitable for mediation? Not all disputes can be mediated. If your matter involves: pursuit or predatory type stalking, a real risk of harm, threat or violence, or if the police apply for the intervention order, it may not be suitable for mediation. You can refer to the Dispute Settlement Centre of Victoria s booklet Mediation and Intervention Orders for more information, or contact them on or visit Advantages of mediation: You have more control of the outcome It will be less stressful, costly and timely than a court case You are more likely to reach agreement 85% of disputes are resolved at mediation Personal Safety Intervention Orders 9

10 Getting help Information for applicants and respondents Legal help You have the right to have a say about the order, and the conditions in the order, and to get legal and other help. It is important that you understand what your options are. Intervention orders are a legal process. Legal advice will help. If you cannot afford your own lawyer, you may be able to see a lawyer from Victoria Legal Aid or a community legal centre. Victoria Legal Aid can help you with free information and advice about intervention orders. You can speak to someone in English or ask for an interpreter. They have offices across Victoria that are open Monday to Friday from 8.45 am to 5.15pm. Call or (country callers). Who else can help? Victoria Police If you are in danger and need urgent help, call the emergency number 000 and ask for the police. If it is not an emergency, you can call or go to your local police station. Victims of Crime Helpline The Victims of Crime Helpline can assist you if you are a victim of stalking, by providing advice and they can refer you to people who can help. They may also be able to assist you if you have been a victim of a crime such as an assault, sexual assault, serious threats or harassment. Court staff At the court, a number of people can help you, including registrars. A registrar will speak with you about the application and can advise you about the court process. They cannot give you legal advice. There may also be court network volunteers who can support you while you are waiting at court. They can explain how court works and may be able to give you information about other services that can help. If mediation is not appropriate, then you can apply for a personal safety intervention order. 10

11 What to do if you need an intervention order Information for applicants If mediation is not appropriate, you may want to consider applying for a personal safety intervention order. You may want to seek legal advice before applying for an intervention order. Where can you apply? You can apply for an order at the Magistrates Court of Victoria. If you or the person you are applying for an order against are under 18 years you will need to apply at the Children s Court of Victoria. Most Magistrates Courts have a Children s Court jurisdiction. How to apply? You need to fill out an information form for an intervention order. You can download the form from the Magistrates Court website or you can get it from the court. Contact your local court to make an appointment to lodge your application. To find your local court visit Magistrates Court of Victoria Children s Court of Victoria What will the court ask you? Once you have completed the application form, you give it to the court registrar, who will talk to you about what is happening. Give the registrar as much detail as you can, including dates and times. If you do not feel safe and need protection straight away, tell the registrar. The application will be sent into court, and a magistrate can make an interim order or issue a warrant. What happens next? The registrar will type up the application. You can read over the application to check that the details are right. Once you agree, you will be asked to sign it and promise that the information is true and correct. You will get a copy of the application and summons. The summons tells you the date you need to come to court for the hearing. The court registrar will help you understand the court process and what happens next. Personal Safety Intervention Orders 11

12 What is an interim order? If you are applying for an interim order, there will usually be a court hearing on the day you lodge the application. The magistrate can make an interim order if they believe it is necessary for your safety or to protect your property. If you are applying for an interim order, there will be a court hearing on the day of your appointment. The magistrate can make the interim order even if the respondent is not at court. Once the respondent gets the interim order, they must follow the conditions of the order. If the respondent breaks this order, the police can take action. If a magistrate makes an interim order, you will get a copy of it from the court. The registrar will also give you an explanation of the order. Can you still try mediation after you apply for an order? You can try mediation at any time during the court process. If you have an interim order, you can still go to mediation, as long as the order allows for it. Let the registrar know that you might want to try mediation and they can make sure that the interim order allows this. The registrar helped me get in contact with the Dispute Settlement Centre. Although I had applied for an intervention order, I was still able to speak with someone about mediation. The Dispute Assessment Officer contacted the respondent and organised a date for us to attend mediation to sort out our dispute. 12

13 What if someone has applied for a personal safety intervention order against you? Information for respondents What documents are you meant to get and what do they mean? If a person has applied for a personal safety intervention order against you, the police will serve you with a copy of the application and summons. The application will describe what the applicant says has happened, and will set out the conditions the applicant wants on the intervention order. The summons will state what date you need to come to court. If an interim order has been made the police will also serve you with a copy of the order. Once you get the order, you must follow the conditions. The conditions on the interim order might be different to those sought in the application. If the court has issued a warrant, the police will arrest you and may bail you to the next court date. Do you have to go to court? If you signed a bail document you must go to court. If you don t, you may be arrested. If you get a summons, you should go to court. If you don t go to court, the magistrate might make an order against you without hearing your side of the story. If you want to have a say about the order, you have to go to court. How will an order affect you? An intervention order can stop you from doing a number of things, depending on what conditions the magistrate has included on the order. A magistrate may include any conditions they think are necessary to protect someone s safety. These conditions can stop you from : stalking, assaulting, harassing, and threatening the protected person damaging the protected persons property following the protected person contacting the protected person going anywhere near the protected person, or their home, workplace or school getting someone else to hurt or threaten the protected person having a gun or a weapon Personal Safety Intervention Orders 13

14 Criminal record An intervention order is a civil process and you will not get a criminal record if the court makes an intervention order against you. However, if you are found guilty of breaking the order, you will get a criminal record. Employment It may affect your job if it stops you going to places you need to work at, or if you work with or near the protected person. Talk to a lawyer if you are worried about this. If you are found guilty of breaking the order, you will get a criminal record. This may make it more difficult to get certain kinds of jobs or even travel in the future. Gun Licence If an intervention order is made against you, you will be banned from having a gun for five years or more. The magistrate can also put a condition in the order that cancels any permits you have to use guns and weapons. The police can search for guns and other weapons, and remove any they find. 14

15 Going to court Information for applicants and respondents When do you have to go? The application and summons will tell you the date of the first court hearing. You may have to go to court more than once. The first hearing is usually within a week or two of the applicant making the application. If the police arrested the respondent then it may be earlier. What do you need to take to court? Take the court forms you were given and any other relevant paperwork. You can bring someone to support you while you are at court. If both parties do not agree about the order, the matter will be adjourned to a contested hearing. You can bring witnesses to the contested hearing. What to do when you get to court? When you get to court, go to the counter and tell the registrar that you are there. The registrar sorts out the order of the hearings on the day. Your case may not be heard straight away. The registrar will ask if you want to see a duty lawyer or if you would like to speak to a Dispute Assessment Officer (DAO) about mediation. What happens in the court room? When your name is called, you will need to go into the courtroom. You will need to stand behind the table at the front of the court, facing the magistrate. The magistrate or bench clerk will tell you what to do. You should speak clearly and answer all questions you are asked. The magistrate will make a decision depending on what you and the other party have decided to do. Personal Safety Intervention Orders 15

16 Who can help you at court? Lawyers are on duty at courts and tribunals across Victoria. A duty lawyer is a lawyer from Victoria Legal Aid or a community legal centre who can give people free legal advice at court. They can help explain your choices, give you information and refer you to other help. There is also a dispute assessment officer at court, who will speak to you to see if mediation will help resolve your dispute. Each court is different, and not all courts have these services. Contact your local court to see what services are available to help you at the hearing. A lawyer helped me and gave me legal advice about what to do with my case. They were able to speak with the other party and arranged for us to go to mediation to resolve our dispute. 16

17 Coming to court for the first hearing Information for applicants and respondents What is the first mention hearing? The first mention hearing is the first time you come to court after the application has been lodged. You and the other party should both be at court. You will be asked about the possibility of mediation and if your matter can be resolved. What if the other party doesn t come to court? If the respondent does not come to court, the magistrate might make a final intervention order without hearing from them. If the applicant does not come to court, the magistrate might cancel the application. If you cannot come to court on the date marked on the application, you can contact the court to ask for an adjournment. If the court hears from you or gets a letter from you asking for the court date to be changed, the magistrate might adjourn the application to another date so both parties can go to court. You should say why you cannot come to court. A few different things can happen at the first mention including agreement that an intervention order will be made parties agree to an undertaking application is adjourned for mediation you cannot agree on an outcome and the application is contested What if the respondent agrees to the order? If you are the respondent and decide to agree to the intervention order, you can: agree to the conditions asked for by the applicant agree to an order being made, but with different conditions The respondent can agree to an order being made but without agreeing with what is said in the application. This does not affect the order. Personal Safety Intervention Orders 17

18 What is an undertaking? An undertaking is a written promise given by the respondent, that they will not do certain things. The promise is made to the court and to the applicant. The applicant must agree to an undertaking for the court to accept it. If an undertaking is given to the court, the application is withdrawn. If the respondent breaks the undertaking, the police cannot enforce it, as it is not a court order. The application can be reinstated in certain circumstances. What if the respondent does not agree with the order? If the respondent does not agree to the making of an order, they can contest the application. The court will list the application for a contested hearing. The magistrate will adjourn the application and list the contested hearing on another date, usually listed about 2 3 months after the first mention date. The magistrate may also want to list the matter for a directions hearing. This hearing allows the court to ask for more details about the application and what the main issues are. This also allows the magistrate to work out how many witnesses may be called to give evidence and how much court time will be needed. 18

19 A magistrate may direct you to try mediation Information for applicants and respondents At any stage during the court process, a magistrate may direct you to have a mediation assessment. A Dispute Assessment Officer (DAO) will talk to you both to work out if your case is suitable for mediation. For mediation to happen you both need to agree to it. If your dispute is sorted out at mediation, and everyone agrees, the application for an order will not go ahead. If you cannot agree at mediation, your case will go back to court. The magistrate directed us to speak with a Dispute Assessment Officer to talk about mediation. They were very friendly and they booked our matter for mediation in a few weeks. Personal Safety Intervention Orders 19

20 Contested hearings Information for applicants and respondents What is a contested hearing? This hearing happens when both parties do not agree that the order should be made. Contested hearings take longer because the court may need to hear evidence from witnesses. The magistrate will then decide if an intervention order should be made or not. How can you prepare for a contested hearing? If you have not spoken to a lawyer, you should do so before the contested hearing. They can give you legal advice and help you prepare for your case. 20

21 Final personal safety intervention orders Information for applicants and respondents When can the magistrate make an order? A magistrate can make an order if they believe that: the respondent has committed prohibited behaviour against the affected person, and the behaviour is likely to happen again and the affected person fears for their safety or the respondent has stalked the affected person and is likely to do so again. What happens if an intervention order is made? If an intervention order is made, the magistrate will say what conditions they will put in the order and how long the order will last. The magistrate will read out the decision in court. It is important to make sure that you understand what is said. You will get a copy of the intervention order from the court staff after the hearing. You should read the paperwork that is given to you. You must make sure you understand the conditions of the order, as this outlines what the respondent is not allowed to do. If you are unsure, you can speak with a registrar or a lawyer. Disagreeing with the magistrate s decision If you are unhappy with the decision made by the magistrate you may be able to appeal the decision to the County Court. You should get legal advice first. See Getting help on page 10. If you decide to appeal, you need to lodge the paperwork at the court within 30 days of the decision being made. Personal Safety Intervention Orders 21

22 What if the respondent is under 18? Information for applicants and respondents If the respondent is under 18, you need to apply at the Children s Court. There are some differences when you apply for an intervention order in the Children s Court. These include; you cannot apply for an intervention order against a person who is under 10, if there is an intervention order between two children who go to the same school, the court can order that the school receives a copy of the order, if you have a related Magistrates Court application it can be heard with the Children s Court application, if you are 14 years and over, a parent/ guardian can apply for you, or you can with permission from a magistrate, a parent or guardian will need to apply on behalf of any affected person who is under 14 years old. If you want more information about the Children s Court, you can visit or contact your local court. 22

23 Living with an intervention order Information for applicants and respondents What to do if you want to change the order? If your situation changes, you can apply to the court to change or cancel an intervention order. If you are the respondent, you will need to ask the court for permission before applying to change the order. You will need to go to a hearing where a magistrate will decide whether to change the order. The other party will be notified and can go to the hearing. What happens if the respondent disobeys the order? If the respondent does not follow the conditions of the interim or final intervention order it is called a contravention of the order. This is serious and it is a criminal offence. If the respondent disobeys the order, the protected person can report it to the police. The police can investigate and may arrest the respondent and interview any witnesses. If the police decide to charge the respondent, they will have to go to court. What happens when the order is about to finish? If the protected person still feels unsafe, they can apply to the court to extend the intervention order. They must do this before the order expires. The respondent will be notified that an application to extend has been lodged. If there are no further applications, the order will finish on the expiry date. Personal Safety Intervention Orders 23

24 Where to get help and contact information In an emergency, always call 000. Court Magistrates Court of Victoria Tel: or visit: Children s Court of Victoria Tel: or visit: Dispute Settlement Centre of Victoria If you are interested in mediation or want more information about mediation Tel: or visit: Legal help Victoria Legal Aid Tel: or (country callers) or visit: Federation of Community Legal Centres To find your nearest community legal centre Tel: or visit: Women s Legal Service Victoria Free confidential legal information, advice, representation and referral for women in Victoria. Tel: or or visit: Victoria Aboriginal Legal Service 24 hour free legal help for Aboriginal and Torres Straight Islander people Tel: or or visit: 24

25 Where to get help and contact information Support Services Victims of Crime Helpline Tel: Opening hours: 8am 11pm Monday Friday (except public holidays) WIRE Tel: or visit: Interpreters If you need an interpreter to help you speak to any of these services you can call: Telephone Interpreter Service Tel: Ask the interpreter to put you through to the service you need. The Telephone Interpreting Service is free if you are calling Victoria Legal Aid. It is also free for most government agencies and community organisations. Personal Safety Intervention Orders 25

26

27

28 Magistrates Court of Victoria D0J