Binding over (state law)

Another 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 Family Violence Protection Act 2008 (Vic) (and the availability of personal safety intervention orders under the Personal Safety Intervention Orders Act 2010 (Vic)), the binding over 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 the MC Act (s 126A(4), if the bond is not complied with, the court may order imprisonment for up to 12 months.