# Issue Some Magistrates' argue that where the AFM is not consenting to a final order on a Mention date for an IVO application, they cannot finalise the order under s 61 of the FVPA 2008. Can a final order be issued where the AFM is not consenting to that final order? # Rule Generalia specialibus non derogant – where there is a conflict between general and specific provisions, the specific provisions prevail. This should only be relied upon where there are inconsistent provisions that cannot be reconciled according to ordinary interpretation. Reddendo signula singulis – where two or more subjects are qualified by two or more matters, the qualifications attach the subjects in the order in which they appear. ## Relevant Definitions "affected family member" means the following persons— (a) a person the subject of an application for a family violence intervention order to protect the person or the person's property; (b) a person for whom a police officer intends to make an application referred to in section 13(1)(a) or 13A(1)(a) to ensure the safety of the person or to preserve any property of the person; (c) a person who is seeking leave, or for whom leave is being sought, from the court to make an application for a family violence intervention order as referred to in section 45(d)(ii) or (iii) or (e)(ii); (d) an additional applicant under section 76; "party", to a proceeding under this Act, includes— (a) the affected family member or protected person for the proceeding, whether or not the person is the applicant for the proceeding; and (b) if the affected family member or protected person is not the applicant for the proceeding, the applicant; and (c) the respondent for the proceeding or the respondent who is the subject of an order made in the proceeding; "first mention date", in relation to an application for a family violence intervention order, means the first date on which the proceeding for the application is listed before the court; "mention date", in relation to an application or appeal under this Act, means— (a) the first mention date; or (b) another date on which the proceeding is listed before the court other than for a contested hearing or the hearing of an appeal; "contested application" means an application the subject of a contested hearing; "contested hearing", in relation to an application under this Act, means a hearing by a court in which a party to the proceeding is contesting the final determination of the application; ## Relevant Legislation ### FAMILY VIOLENCE PROTECTION ACT 2008 - SECT 1 Purpose The purpose of this Act is to— (a) maximise safety for children and adults who have experienced family violence; and (b) prevent and reduce family violence to the greatest extent possible; and (c) promote the accountability of perpetrators of family violence for their actions. ### FAMILY VIOLENCE PROTECTION ACT 2008 - SECT 2 How purpose is to be achieved This Act aims to achieve its purpose by— (a) providing an effective and accessible system of family violence intervention orders and family violence safety notices; and ### FAMILY VIOLENCE PROTECTION ACT 2008 - SECT 61 Mention date *(Division 3 - Proceedings for Family Violence Intervention Orders)* (1) The court must not proceed to hear a contested application for a final order on a mention date unless the court is satisfied that— (a) all the parties to the proceeding have had an opportunity to seek legal advice and legal representation; and (b) all the parties to the proceeding consent to the hearing of the contested application on the mention date; and (c) it is fair and just to all the parties to hear the application on the mention date. (2) Subsection (1) does not prevent the court making a final order on a mention date if— (a) all the parties to the proceeding have consented to, or are not opposed to the making of, the order in accordance with section 78; or (b) the court is satisfied the respondent has been served with a copy of the application for a family violence intervention order and has not attended court on the mention date. ### Explanatory Memorandum re: s 61 Clause 61 provides the particular circumstances when a court can hear a contested application on a mention date. It is expected that contested applications will not usually be heard on a mention date. Rather they would be adjourned and listed as contested hearings to enable the parties to prepare their cases and arrange legal representation. There may be some instances, however, when all parties wish a contested hearing to be heard and determined on the mention date. To ensure no party feels pressured to have a contested hearing on a mention date, even if there is time to hear the matter, this clause sets out a list of matters the court must be satisfied about. In particular— • that the parties have had the opportunity to seek legal advice; • all the parties to the proceeding consent to the contested hearing for the final determination taking place on the mention date; and • it is fair and just to all the parties to conduct the contested hearing on the mention date. Clause 61(2)(a) provides that clause 61(1) does not stop the court making a final order on the mention date if all the parties consent to, or do not oppose, the making of the order. Clause 61(2)(b) makes clear the court may make a final order on the mention date if the respondent has been served with the application but has not attended court on the mention date. ### FAMILY VIOLENCE PROTECTION ACT 2008 - SECT 74 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 the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again. (2) A final order may be made for more than one affected family member if— (a) the court is satisfied of the matters set out in subsection (1) in relation to each of the affected family members; or (b) consent has been given, or the making of the order has not been opposed, in accordance with section 78 by— (i) all the parties to the proceeding; and (ii) if the application for the final order was brought with the consent of an affected family member's parent or guardian, that parent or guardian. Notes 1 If the court makes a final order in relation to an affected family member, the court must make a final order to protect a child who has been subjected to family violence—see section 77. 2 If the court does not make a final order in relation to an affected family member, the court may, on its own initiative, make a final order to protect a child who is not an affected family member—see section 77B(1). (3) The court may make a final order whether or not— (a) some or all of the family violence constituting grounds for making the order occurred outside Victoria, so long as the affected family member was in Victoria at the time at which the family violence occurred; (b) the affected family member was outside Victoria at the time at which some or all of the family violence constituting grounds for making the order occurred, so long as that family violence occurred in Victoria. ### FAMILY VIOLENCE PROTECTION ACT 2008 - SECT 75 Power to make final order if affected family member has not consented to application or order—police applicants (1) If the applicant for a final order is a police officer, the court may make the order under section 74 even if the affected family member has not consented to the making of the application. (2) However, if the affected family member does not consent to the making of the final order, the final order may include only conditions referred to in section 81(2)(a), (f), (g) or (h). (3) Subsection (2) does not apply if— (a) the affected family member is a child and— (i) no adult affected family member is included in the application; or (ii) the adult affected family member included in the application consents to the making of the order; or (b) the affected family member has a guardian and the guardian has consented to the application; or (c) the affected family member is cognitively impaired. Clause 6 amends section 75 of the Family Violence Protection Act 2008. Subclause (1) inserts the words "or order—police applicants" into the heading to section 75 of the Family Violence Protection Act 2008. This provides that section 75 applies to applications for family violence intervention orders commenced by police and final orders made by the court based on such applications. The clause clarifies that both the police and the court may act without the consent of the affected family member and clarifies the power of the court to make final orders in three circumstances. First, where an application is commenced by police with or without the consent of the affected family member, but the affected family member consents to the making of the final order. Second, where an application is commenced by police with or without the consent of the affected family member and the affected family member does not consent to the making of the final order. Third, where an application commenced by police involves a child. Subclause (2) substitutes "has not consented to the making of the application" with the words "does not consent to the making of the final order" in section 75(2) of the Family Violence Protection Act 2008. This clarifies that where police commence an application for a family violence intervention order and the affected family member does not consent to the order being made, the court may only make a limited order that protects the affected family member but may only includes the conditions referred to in section 81(2)(a), (f), (g) or (h) of the Family Violence Protection Act 2008. Subclause (3) substitutes section 75(3)(a) of the Family Violence Protection Act 2008. These amendments clarify that where police commence an application for a single family violence intervention order on behalf of both an affected family member and a child(ren), and the affected family member does not consent to the making of the order, the court may only make a limited order as described in section 75(2) of the Family Violence Protection Act 2008. ### FAMILY VIOLENCE PROTECTION AMENDMENT (SAFETY NOTICES) BILL 2011 6 April 2011 Statement of Compatibility CLARK Second, under current law, police can make an application for a family violence intervention order to protect a victim of family violence even if that person does not consent to the police taking that action. The amendment simply confirms that when police bring these applications, with or without the consent of the affected family member, if the affected family member does not consent to the court making the order, the court can still make a limited order that protects the affected family member but does not necessarily affect the living arrangements of the parties. Where there is a police application for making or amending a single intervention order that protects an adult and a child(ren), the amendment confirms that the court may still make a limited order in circumstances where the adult does not consent to the making or amending of the order. The amendments to section 75 of the act maintain the existing balance between providing protection and respecting the wishes of the affected family members throughout the intervention order process, from application to the making of a final order. This balance is of particular importance as very often the affected family member, whilst recognising they may require protection, will not seek an intervention order for fear of retribution from the perpetrator. The complex nature and dynamics of family violence are such that often even where the affected family member does have the courage to initiate a family violence intervention order, or to support the police to apply on their behalf, they may be pressured by the perpetrator into withdrawing or opposing the application. The amendments confirm that police and the courts have the power to take protective action for those who may not have the capacity to act in their own interests and afford affected Page 1023 family members protection under the Family Violence Protection Act 2008. Finally the bill amends sections of the Personal Safety Intervention Orders Act 2010. The Personal Safety Intervention Orders Act 2010 provides courts the power to make intervention orders in circumstances that do not involve family violence. To ensure consistency and clarity for the police and courts, provisions relating to intervention orders in the both Family Violence Protection Act 2008 and the Personal Safety Intervention Orders Act 2010 are procedurally identical. Amendments will be made to the Personal Safety Intervention Orders Act 2010 for intervention orders where the affected person does not consent to an application brought by police or the court making or amending the order. This will ensure continued consistency between the two acts. I commend the bill to the house. ![[20110503-20110505-hansard-la.pdf]] ### FAMILY VIOLENCE PROTECTION ACT 2008 - SECT 78 Consent orders (1) If the parties to a proceeding for a final order, or the variation, extension or revocation of a final order, consent to the making of the order or do not oppose the making of the order, the court may make the order— (a) without being satisfied as to any matter referred to in— (i) section 74 or 76; or (ii) in the case of a proceeding for a variation, revocation or extension of a final order, section 100 or 106; and (b) whether or not the respondent admits to any or all of the particulars of the application. (2) However, if the respondent is a child the court may— (a) make a final order to which the parties consent or have not opposed only if the court is satisfied as to all relevant matters referred to in section 74 or 76; or (b) in the case of a proceeding for a variation, revocation or extension of a final order, make an order varying, revoking or extending the final order to which the parties consent or have not opposed only if the court is satisfied as to all relevant matters referred to in section 100 or 106. (3) If the application for the family violence intervention order or for the variation, revocation or extension of the family violence intervention order was made with the consent of an affected family member's parent or guardian, that parent or guardian is taken to be a party for the purposes of consenting to or not opposing the making of the order . (4) Before making a final order or varying, revoking or extending a final order under subsection (1), the court may conduct a hearing in relation to the particulars of the application if, in the court's opinion, it is in the interests of justice to do so. (5) A court may refuse to make a final order, or an order varying, revoking or extending a final order, to which the parties to the proceeding have consented if the court believes the order may pose a risk to the safety of one of the parties or a child of the affected family member or respondent. ### Explanatory Memorandum re: s 78 Clause 78 outlines the circumstances in which a court can make a final order by consent. Clause 78(1) provides that the court can make a final order without being satisfied that there are grounds for making the order if the parties have consented to or do not oppose the making of the final order. The respondent does not need to admit any of the allegations made in the application in order to consent or not oppose the order being made. This is to ensure that where the respondent is willing to have their behaviour constrained by the conditions of an order, the protected person does not need to go through a full court hearing. Clause 78(2) provides an exception to clause 78(1) if the respondent is a child. In this case, the court must be satisfied that there are grounds to make the order. This clause has been included to provide additional protection to child respondents. Child respondents may consent or not oppose the making of an order without fully appreciating the consequences. Therefore, in these cases, the court must be satisfied that the respondent child has committed family violence before making a final order against the child. The length of any order made against a child respondent is limited, by clause 98, to 12 months unless there are exceptional circumstances. Clause 78(3) provides that if an affected person's parent or guardian has consented to the making of an application, that parent or guardian is to be treated as a party for the purposes of consenting to or not opposing the making of an order. Clause 78(4) provides that despite clause 78(1), the court may conduct a hearing if it believes it is in the interests of justice to do so. An example may be if the court believes that the respondent does not fully understand the implications of not opposing the making of an order. This may include the situation of a cross-application, where both parties have applied for an order against each other. The VLRC found that victims of family violence will often consent to an order being made against them in order to receive the protection of an order made against the perpetrator. This may be a situation where the court believes it is in the interests of justice to conduct a hearing. Clause 78(5) states that a court may refuse to make a final order that the parties have consented to or have not opposed if the court believes it may pose a risk to the safety of one of the parties or a child of either of the parties. An example may include if a perpetrator of violence has applied for an order against the victim. Clause 78(6) provides that the court must consider whether there are any children of either of the parties that require the protection of an order, according to clause 77, regardless of whether the court decides to make an order under clause 78(1). This is to ensure that any children involved continue to receive the protection of an order where this is necessary even if other parties consent to or do not oppose a family violence intervention order being made. # Extrinsic Materials ## Legislative Assembly, Second Reading Speech, FVP Bill 2008, Mr CLARK: These are admirable principles that could well be extended to apply to all other forms of violence as well. The VLRC recommended a range of measures, most of which have resulted in provisions in the bill. ### **VLRC Family Violence Law Report** (lead to the creation of the FVPA 2008.) Recommendation 28: Police should be able to apply for an interim intervention order regardless of the protected person’s wishes. Recommendation 29: Police should not be able to apply for a final order without the consent of the protected person unless the person is a child or has a cognitive impairment See pp. 149–52, 267–69 5.98 The commission believes these concerns can be addressed by limiting the police power to apply against the victim’s wishes to interim intervention orders only. These orders last for a limited time, thereby providing short-term protection to those at risk of family violence. Once the police have been involved in a family violence incident, they have an obligation to refer victims to appropriate support services.533 These services will be able to assist the victim with the final application process. However, the commission believes it is appropriate for the police to take the immediate decision of whether to apply for an order out of the victim’s hands in a crisis situation. This is consistent with our view on the appropriate response to family violence in a crisis situation compared to the medium- and long-term response. 5.99 A woman may call the police hoping they will only intervene to defuse the crisis and may not expect or understand that they may apply for an intervention order on her behalf. However, as agents of the State, the police have a responsibility to protect the safety of individuals. It is therefore appropriate that they can take action in a crisis to protect people at risk of family violence. In the case of Indigenous victims of violence, police have the same responsibility to protect people at risk. With the provision of culturally sensitive support to the victims, the police can take appropriate action to ensure safety and protection for those involved. The commission does not believe that the ability of police to apply for interim orders without the victim’s consent will increase reluctance to involve the police in a family violence situation. Most victims of family violence call the police because they are in crisis and need protection, and are not necessarily considering the legal consequences of their actions. --- ### [RCFV_Full_Report_Interactive.pdf](http://rcfv.archive.royalcommission.vic.gov.au/MediaLibraries/RCFamilyViolence/Reports/RCFV_Full_Report_Interactive.pdf) pp. 119: A police-initiated FVIO can be made without the affected family member’s consent, but an order made without the consent of the affected family member may only contain limited conditions. For example, the order cannot exclude the perpetrator from the home.24 ### Royal Commission into Family Violence 2016 - Research Report: pp. 42: The absence of affected family members had a substantial impact on the conditions imposed, as police cannot seek to exclude the respondent from his home without the affected family member’s consent. In a number of matters, the affected family member was not present and so police, even though wanting a comprehensive order, had to be willing to seek a more limited order instead. In one interesting matter, the affected family member was adamant that she did not want an intervention order at all. She testified that she understood the consequences of this and that, as an articulate and thoughtful person, she appreciated police concern but did not want an order in place. This was an interesting example of how police interests are not always the same as those of the victims of family violence. Indeed, one police prosecutor recommended that every family violence victim should have her own legal representation, as police are not there to represent the victim but to represent the State. --- ### Family Violence Bench Book #### Consent Orders - Final Orders The court may make a final intervention order if all the parties consent to the order or do not oppose the order (a "consent order"). When making a consent order, the court does not need to be satisfied of the facts necessary to support a final order under s [74](https://jade.io/article/281898/section/476) or s [76](https://jade.io/article/281898/section/617).[253](https://jade.io/article/281898) This provision addresses the issues raised by [Stephens v Melis and the Magistrates’ Court at Moe](https://jade.io/article/74583),254 which held that under the [Crimes (Family Violence) Act](https://jade.io/article/281809) [](https://jade.io/article/281809)[1987](https://jade.io/article/281809), the court still needed to be satisfied of the relevant jurisdictional facts before making an order by consent. The Act defines "a party" to include the affected family member, the applicant and the respondent. Even if the affected family member did not initiate the application, she is still a party to the application, as well as the applicant.[255](https://jade.io/article/281898) A parent of an affected family member or the guardian of an affected family member under the [Guardianship and Administration Act 1986](https://jade.io/article/282099) may apply for the intervention order on behalf of a child or represented person. The parent or guardian is then a party to the proceeding, including for the purposes of consent orders. If a third party brought the application with the consent of the affected family member’s parent (see s [45(d)(ii)](https://jade.io/article/281898/section/1121836)) or guardian, the parent or guardian must also consent to or not oppose the order.[256](https://jade.io/article/281898) The court may conduct a hearing in relation to the particulars of the application before making a consent order, if it is in the interests of justice to do so, however it is not bound to conduct a hearing.[257](https://jade.io/article/281898) The power to make consent orders is discretionary. Even when all the parties consent to the order, the court may refuse to make the order if it believes that the order may pose a risk to the safety of a party or a child of the affected family member or respondent.[258](https://jade.io/article/281898) #### Mention Date All applications, whether made by application and warrant, application and summons or Family Violence Safety Notice will be returned to a mention date. In most magistrates’ court venues, specific days in a dedicated court room are allocated for the mention of family violence intervention order matters. Many courts have established procedures for court meetings prior to commencing calling matters on. A morning co-ordination meeting chaired by the registrar involves a police prosecutor, lawyers from Legal Aid and community legal centres and, where applicable applicant and respondent support workers or other support agencies who maintain a presence at the relevant court venue. These meetings enable all the relevant practitioners to gain an understanding of the cases that are contested and any issues regarding security or service that may arise. The [Mention Date checklist](https://www.judicialcollege.vic.edu.au/resources/mention-date-checklist) identifies matters that must be addressed at first mention. The court must determine: Whether an interim order is in place and, if not, whether an interim order is warranted; - Either: if the respondent is not present at court, whether he or she has been served with the application and summons; and - if the respondent is present, whether he or she will contest the final intervention order. The court may make a final intervention order at a mention hearing where: - All parties to the proceeding have consented to, or do not oppose, the making of the intervention order; or - The court is satisfied that the respondent was served with the application and has not attended the hearing and is satisfied that the circumstances warrant making a final intervention order according to the test in [FVPA](https://jade.io/article/281898) s [74](https://jade.io/article/281898/section/476) (the respondent has committed family violence and is likely to do so again. - Alternatively, the court may conduct a contested final hearing on the mention date if: - All parties have had the opportunity to get legal advice and representation; - All parties consent to progressing to the final hearing; and - The court determines that it is fair and just to all parties for the application to be heard at that time.[180](https://jade.io/article/281898) # Application # Application In analysing the question, it's important to set the scene with an example situation. Police have attended a family violence incident. On the night, the police inititated a family violence intervention order application, either via FVSN, Application and Summons or Application and Warrant. The matter is now before the Magistrates' Court at first mention. ## The Short Answer Yes, Police can make an order, but only with limited conditions. This order is **not considered to be a consent order.** If police are satisfied with resolving the order as a 'safe contact' order (e.g. not to commit family violence clause only), then the matter can be resolved oursuant to s. 75(2). If police are not satisfied that a safe contact order will provide adequate protection, the matter should proceed as a contested hearing for the intervention order. This should be done on a later date, but s. 61 provides provisions to allow it under certain circumstances. ## The Long Answer In 2006, the Victorian Law Reform Commision tabled a report with numerous recommendations for the government to create a new Act in relation to family violence intervention orders and the procedure to obtain them at court. At the time, the Crimes (Family Violence) Act 1978 was the Act that governed this system. Part of the VLRC's report were recommendations 28 and 29, which recommend that police should not be able to apply for a final intervention order without the consent of a protected person. In 2008, the Family Violence Protection Bill was tabled in Victorian Parliament. Throughout the Second and Third Reading's of the Act, it is clear that not **all** recommendations were implemented into the Act. Everyone is careful to say 'incorporating a majority of the recommendations.' ## Magistrates' Argument for no Final Orders without consent from AFM Where the matter is at mention, Magistrates' rely upon s 61, which outlines what can happen on a mention date. Specifically, they will refer to s 61(2) and argue that because the AFM is not consenting, all parties are not consenting and a final order cannot be made. Where this then becomes problematic for a prosecutor, is in presenting s 75. Magistrates' will argue that despite s 75 existing, they cannot finalise the order because of s 61. ## Statutory Interpretation It's important now to fall-back onto the rules governing how to interpret the legislation: 1. What does the text of the legislation say? 2. What was Parliaments objective in the text itself? 3. Don't consider the wordsd in isolation, but consider the broader context in which the text appears. The Interpretation of Legislation Act (VIC) assists in guiding us as well: - s 15AB: We can/should give consideration to 'Extrinsic Materials' such as Explanatory Memoranda, Second Reading Speeches and reports of Royal Commissions or Parliamentary Committee's. - s. 15AA: When we interpret any provision of an Act, the interpretation that would support the purpose of the Act should be chosen over that which would not support it. And lastly we should utilise maxims and principles of statutory interpretation found in case law: - Generalia specialbus non derogant - where there is a conflict between general and specific provisions, the specific provisions prevail. This should only be relied upon where there are inconsistent provisions that cannot be reconiled according to ordinary interpretation. Purcell v Electrocity Commn of New South Wales (1985) 60 ALR 652 An example of this rule: All vehicles must stop a red light (Road Rules). However, both the Road Rules and the Road Safety Act give specific provisions to emergency vehicles being allowed to breach this road rule (e.g. ambulance going through red light). When we apply both, it's clear that Parliaments intention was to allow emergency vehicles to go through red lights when they need to do so. - Reddendo signula singulis - where two or more subjects are qualified by two or more matters, the qualifications attach the subjects in the order in which they appear. Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service 1978 AC 655. ## Interpreting s 61 and s 75 FVPA 2008 Part 4 of the Act is titled "Family Violence Intervention Orders." s 61 sits within Part 4, Division 3 "Proceedings for family violence intervention orders." s 75 sits within Part 4, Division 4 "Making final orders." **s 75** is titled: "Power to make final order if affected family member has not consented to application or order - police applicants" and states: (1) If the applicant for a final order is a police officer, the court may make the order under section 74 even if the affected family member has not consented to the making of the application. (2) However, if the affected family member does not consent to the making of the final order, the final order may include only conditions referred to in Section 81(2)(a), (f), (g), or (h). (3) Subections (2) does not apply if- (a) the affected family member is a child and - (i) no adult affected family member is included in the application; or (ii) the adult affected family member included in the application consents to the making of the order; or (b) the affected family member has a guardian and the guardian has consented to the application; or (c) the affected family member is cognitively impaired. As **Section 74** being "Power of court to make final order" states: (1) The court may make a final order if hte court is satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again. (2) A final order may be made for more than one affected family member if- (a) the court is satisfied of the matters set out in subsection (1) in relation to each of the affected family members; or (b) consent has been given, or the making of the order has not been opposed, in accordance with section 78 by- (i) all parties to the proceeding; and (ii) if the application for the final order was brought with the consent of the affected family member's parent or guardian, that parent or guardian. (3) The court may make a final order whether or not- (a) some or all of the family violence constituting grounds for making the order occurred outside of Victoria, so long as the affected family member was in Victoria at the time at which the family violence occurred; (b) the affected family member was outside Victoria at the time at which some or all of the family violence constituting grounds for making the order occurred, so long as that family violence occurred in Victoria. Going back to our rules and maxims of how we interpret this legislation. s 74 gives the court a general power to make final intervention orders and makes references to consent orders pursuant to s 78. The purpose of the Family Violence Protection Act 2008 is to: - (a) maximise safety for childrens and adults who have experienced family violence; and - (b) prevent and reduce family violence to the greatest extent possible; and - (c) promote accountability of perpetrators of family violence for their actions. ## What was Parliaments objective when they wrote s 75? s 75 was implemented with the original bill in 2008. The explanatory memorandum for that bill provides: "Clause 75 outlines the power of the court to make a final order if there is a police application that the affected family member has not consented to. In this case, the court may make a final order; however, the court is restricted as to the conditions it may impose on such an order." Throughout the First, Second and Third Reading Speeches in the Legislative Assembly and Legislative Council there is no direct reference made to s 75 or its circumstances (e.g. no consent from an AFM). At the time, the legislative change was quite large and this issue seemed not to be he focus. ## The Family Violence Protection Amendment (Safety Notices) Bill 2011 This bill was tabled in mid-2011. The Attorney-General, Mr. CLARK provided this in his Second Reading Speech in the Legislative Assembly on 06/04/2011: "Overview of hte bill. The bill repeals the sunsent provision for family violence safety notices (FVSNs). It also clarifies the power of the Magistrates' Court in relation to adjournment of the intervention order applications brought by way of FVSN and power of the Magistrates' Court to make intervention orders where the protected person does not consent to the making of the application by police and/or the order by the court." The Explanatory Memoranda for the Bill provides: "Clause 6 ... The clause clarifies that both the police and the court may act without the consent of the affected family member and clarifies the power of the court to make final orders in three circumstances. First, where an application is commenced by police with or without consent of the affected family member, but the affected family member consents to hte making of the final order. Second, where an application is commenced by police with or without the consent of the affected family member and the affected famiyl member does not consent to the making of the final order. Third, where an application commenced by police involves a child." ## What is the interpretation of s 75? Relying upon s 35 of the Interpretation of Legislation Act (Vic) (being that we can give consideration to extrinsic materials) and the common law principles of _Generalia specialibus non derogant_ (specific provisions prevail over general provisions), it is clear that where an AFM **does not consent** to the making of a final order which was initated by police, the order **can be** finalised on limited conditions. Whilst this clarifies the specific power intended by Parliament with s 75, is the court then still limited by s 61 as to what they can do? The principles of Generalia specialisbus non derogant is what protects s 75 into operating. s 61 cannot override s 75, as it is a general rule overriding a specifically tailored rule. Parliaments intention behind s 75 was to allow the courts and police to make orders where AFM's were not consenting to those orders being there, but police were concerned (or the courts) due to the risks of further family violence. Further quotes from the Second Reading Speech: "... The amendment simply confirms that when police bring these application, with or without the consent of the affected family member, if the affected family member does not consent to the court making the order, the court can still make a limited order that protects the affected family member but does not necessarily affect the living arrangements of the parties." "... The amendments to section 75 of the act maintain the existing balance between providing protection and respecting the wishes of the affected family members throughout the intervention order process, from application to the making of a final order. This balance is of particular importance as very often the affected family member, whilst recognising they may require protection, will not seek an intervention order for fear of retribution from the perpetrator. The complex nature and dynamics of family violence are such that often even where the affected family member does have the courage to initiate a family violence intervention order, or to support police to apply on their behalf, they amy be pressured by the perpetrator into withdrawing or opposing the application." "The amendments confirm that police and the court have the power to take protective action for those who may not have the capacity to act in their own interest and afford affected family members protection under the Family Violence Protection Act 2008." s 61(2) should **not** be relied upon in arguing the Magistrate down from their position. It is not applicable. Instead, the principle of legislative interpretation is what ultimately wins the argument. As these two sections unfortunately directly contradict each other, we must rely upon the specific instrument made by Parliament, s 75, which provides the power to make the final order on limited conditions. # Conclusion Yes, the courts have the power under s 75 to make a final order without the consent of the AFM where the police are the applicants. The conditions must be limited. s 61 does not overrride s 75 under the principle of _generalia specialibus non derogant,_ being that s 75 is a specific provision and s 61 is a general provision. s 75 would therefore override any contradiction found within s