There are non-legal safety measures available to any person feeling threatened. Refuges and halfway houses and Centrelink support operates to support personal safety. Other legal avenues of recourse include taking out a complaint for a threatened breach of the peace or seeking financial compensation.
Binding over (state law)
Another available course of action is to take out a complaint for a threatened breach of the peace. This action is made in a state Magistrates’ Court under section 126A of the Magistrates’ Court Act 1989 (Vic) (“MC Act”). In such cases a woman, for example, must show that she is genuinely afraid that she will suffer bodily harm. Evidence of previous assaults may be admissible in proving that her fears are well-founded. The complaint should give precise particulars of dates, places, and the nature of the incidents complained of, including the particular assault or threatening words and gestures that were used.
Given the broad definitions of “family violence” and “family member” under the FVPA (and the availability of personal safety intervention orders under the PSIOA), this remedy is rarely used in family violence cases. However, it may be the only remedy in cases of stalking or violence between neighbours, co-tenants and acquaintances where a personal safety intervention order cannot be obtained.
Also, unlike intervention orders, this remedy is not very effective. Police cannot be applicants and they have no power of arrest. If the application is successful, the offender may be required to enter into a bond to keep the peace or to be of good behaviour and may have to acknowledge that, if not done, a certain amount of money will have to be forfeited. Under section 126A(4) of the MC Act, if the bond is not complied with, the court may order imprisonment for up to 12 months.
Civil claim for damages
If a person who has experienced family violence has suffered substantial injury (usually serious physical injury), it is possible to institute civil proceedings for damages against the perpetrator in the state courts. However, this is a costly, lengthy and risky process that requires expert legal advice. Also, time limits apply for initiating civil proceedings.
The most accessible source of monetary compensation is from the Victims of Crime Assistance Tribunal (VOCAT), which operates in the Magistrates’ Court under the Victims of Crime Assistance Act 1996 (Vic). (See VOCAT in “Contacts and useful links”.)
VOCAT provides financial assistance to those who have experienced violent crime committed in Victoria. VOCAT compensates people for expenses incurred as a direct result of the crime (e.g. medical, safety related and funeral expenses, and lost earnings). A person who has experienced family violence can also seek “special financial assistance” for pain and suffering.
Victims of crime can seek compensation. This is complicated and the applicant should obtain legal advice. (See Assistance for victims of crime.)
Under section 85B of the Sentencing Act 1991 (Vic), it is possible to obtain an order for compensation against the perpetrator in a state court if they are convicted of a criminal offence.
People who have experienced family violence should consider taking protective measures (e.g. changing locks, changing telephone numbers, screening calls, or moving house). Tell neighbours and local police that there may be trouble from your former partner. Keep a written and photographic record of incidents.