Personal Safety Intervention Orders
If an individual has experienced prohibited behaviour from another person, they have the right to apply to the Magistrates’ Court for a personal safety intervention order.
The Personal Safety Intervention Orders Act 2010 prohibits the following types of behaviour:
- assault
- sexual assault
- harassment
- property damage or interference
- making a serious threat
- stalking.
The individual who seeks the protection of a Personal Safety Intervention Order is known as the affected person or Applicant, while the person against whom the Order is directed is referred to as the Respondent.
The affected person has the option to file the application themselves, or they can have the application filed on their behalf by the police.
Assault
Assault means any application of force to another intended to inflict bodily injury, pain, discomfort, damage, insult or deprivation of liberty.
Harassment
Harassment means a course of conduct by one person towards another person that is demeaning, derogatory or intimidating. It explicitly includes conduct that is carried on through a third person.
Property damage or interference
The property damage or interference must be repeated and intentional to fall within the scope of the Act. One off and inadvertent property damage or interference (such as accidentally damaging a person’s car) does not constitute prohibited behaviour and grounds for a personal safety intervention order.
A serious threat
A serious threat means a threat to kill or to inflict serious injury as defined in the Crimes Act 1958. ‘Serious injury’ includes a combination of injuries or the destruction of an unborn baby.
What is stalking?
Stalking is serious intentional pursuit type behaviour causing physical or mental harm to a person or arousing their apprehension or fear for their personal safety or the safety of someone else. It can include:
- following a person
- contacting a person by post, fax, phone, text, email or by any other means
- publishing information about a person (or pretending to be that person) on the internet, by email or other electronic means
- hacking into a person’s computer
- tracking a person’s use of the internet, email, phone or other electronic communication
- hanging around outside a person’s home, business or other place where that person habitually goes
- interfering with property in the possession of another person
- making threats
- using offensive words (to, or in the presence of) another person
- performing abusive acts (to or in the presence of) another person
- directing offensive acts towards another person
- giving offensive material to another person or leaving it where it will be found by, or drawn to the attention of that other person
- keeping a person under surveillance
- acting in any way that could reasonably be expected to cause physical or mental harm to the other person, including self-harm or making the person feel apprehension or fear for their safety.
Did the person intend to cause harm?
The person who is alleged to have been stalking another person may be found to have intended to cause physical or mental harm (including self-harm) to that person if:
- the person knew that engaging in this kind of conduct would be likely to cause harm or arouse such apprehension or fear, or
- if, all circumstances considered, the person ought to have understood that engaging in that conduct would be likely to cause such harm or arouse apprehension or fear and it did actually have that result.
Mental harm
Mental harm includes psychological harm and suicidal thoughts.
Penalty
These kinds of behaviours are also listed under the Crimes Act 1958 where the maximum penalty is 10 years jail.
Court Proceedings Related to a PSIVO
What happens at court depends on how the respondent chooses to respond to the personal safety intervention order.
The respondent can:
- consent to an intervention order being made
- ask for an undertaking
- contest the application
- ignore the summons and not go to court.
Consent without admissions
If both the affected person and the respondent consent to, or don’t oppose the making of an order, a Magistrate can make a final order without making admissions.
This can only be done if the respondent is an adult.
However, orders will not be able to be made (varied, revoked or extended) against children unless the Magistrate is satisfied on the balance of probabilities that prohibited behaviour or stalking has taken place.
In addition, the court has the power to refuse to make a final order by consent if it believes the order may pose a risk to the safety of one of the parties or to a child of the protected person or respondent.
This is a broad power and may potentially be used if the court thinks an order does not offer sufficient protection to an affected person or child.
Undertakings
A respondent can ask the applicant whether they would accept an undertaking. This is a formal written promise to the person who needs protecting and the magistrate to follow certain conditions.
The applicant does not have to accept an undertaking. It’s their choice.
If both sides agree to an undertaking, the application for an intervention order can be adjourned. If the respondent doesn’t break the conditions agreed to, the applicant can withdraw the application for an intervention order.
If the respondent disobeys the conditions, the applicant can go ahead with the original application. However, breaking the conditions of an undertaking is not a criminal offence.
Contested hearing
The can’t hear a contested application on the mention date unless it is satisfied that:
- all parties have had an opportunity to seek legal advice,
- all parties consent to the contested hearing proceeding and
- hearing the contested application is fair and just to all parties.
The court may make final orders on the mention date if the parties consent to the making of an order.
Conditions in personal safety orders
Information about conditions that may form part of a personal safety order. Each personal safety intervention order has conditions to restrict the respondent’s behaviour.
The magistrate may include any conditions that appear necessary or desirable in the circumstances.
In deciding what conditions to impose the magistrate must allow for the possibility of mediation occurring in future between the affected person and respondent.
The Act provides examples of conditions. They include:
- prohibiting the respondent from committing prohibited behaviour against or stalking the protected person
- excluding the respondent from the protected person’s residence
- prohibiting a respondent student from attending a school
- prohibiting the respondent from approaching, telephoning or otherwise contacting the protected person, unless in the company of a police officer or specified person
- prohibiting the respondent from being within a specified distance of a specified place, such as the protected person’s home or place of work
- prohibiting the respondent from causing another person to engage in conduct prohibited under the order
- revoking or suspending a weapons approval held by the respondent
- cancelling or suspending the respondent’s firearm licence.
See s. 67 Personal Safety Intervention Orders Act 2010 (Vic)
If respondent is a child
Special considerations apply when excluding a child from his/her home or a student from a school.
If excluded from a particular place
If the court includes a condition that excludes the respondent from a place then the court must ask the respondent to provide an address for service. This may be an email address.
If an application is made by the police
The court can still make an order even if the affected person does not agree, however the kinds of conditions that can be made by the court are limited under these circumstances.
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