Notes on guideline 9 – personal safety intervention order cases

9.1 – adults

From 1 July 2020, persons aged 18 years and over are no longer eligible for legal assistance in relation to PSIO applications. Applications may only be submitted under the State's special circumstances guideline.

9.2 – children

General principles

It is recognised that an intervention order should only be made against a child respondent where there is no other reasonable alternative. Lawyers are encouraged to advocate for outcomes and provide advice to clients in line with this principle.

Eligibility criteria

Assistance for PSIO applications under Guideline 9 is available where the person applying for legal assistance is a child, and where all other relevant requirements of Guideline 9.2 are met.

The person must first begin proceedings with the help of the police or a Magistrates’ Court registrar under the Personal Safety Intervention Orders Act 2010 (the Act) before the lawyer recommends that assistance be granted.

Grants of legal assistance will only be available after the first mention if the matter is unable to resolve at the first mention, and where mediation has been attempted (or deemed unsuitable by the Dispute Settlement Centre of Victoria, or other independent mediation service).

It is Victoria Legal Aid's (VLA’s) preference that PSIO applications involving child applicants or respondents are remitted to the Children’s Court of Victoria for determination, if they are originally listed in the Magistrates’ Court of Victoria.

Where the application has been made by a police member with the person seeking assistance listed as an affected person, assistance will only be granted, if the affected person disagrees with the order that police are seeking and meets all other relevant requirements for assistance. It is expected that the police will pursue the matter to completion.

Applications for assistance must also meet the usual requirements of the State reasonableness test.

Guideline 9.2.1 – applicant children

Assistance for a child applicant is available where the child is aged 14 years or more, the court has granted leave for the child to apply for an order and all of the following apply:

• the application is contested
• mediation has been attempted (unless there are exceptional circumstances).

Where an application does not resolve at first mention, the matter is considered to be ‘contested’ for the purpose of obtaining a grant of assistance.

Guideline 9.2.2 – respondent children

Assistance for a respondent child is available where the child is under the age of 18 years and:

• the application for the intervention order is contested
• mediation has been attempted (unless exceptional circumstances apply), and
• the respondent is more likely than not to succeed in contesting the PSIO application in the terms sought by the applicant.

Where an application does not resolve at first mention, the matter is considered to be ‘contested’ for the purpose of obtaining a grant of assistance.

In determining whether the respondent is more likely than not to succeed, VLA will have regard to the test for making an order set out in section 61 of the Act, and the definitions of ‘prohibited behaviour’ set out in Part 2 of the Act.

Guideline 9.2.3 – children who are not applicants or respondents

Where the court grants leave on its own initiative for a child to be heard separately pursuant to sections 46 or 89 of the Act, VLA may make a grant of legal assistance to a child who is 10 years or older.

Applications can be submitted through ATLAS using the 'SIMPLIFIED PROCESS – PERSONAL SAFETY INTERVENTION ORDER' template and selecting 'NOT SATISFIED WITH DISCRETION' at the practitioner certification page.

The lawyer should upload all relevant supporting documentation to ATLAS with the application, including a copy of the court order and details outlining what assistance is sought.

Requirement of mediation

Parties in PSIO matters must attempt mediation through a mediation service such as the Dispute Settlement Centre of Victoria (DSCV). The requirement for mediation is deemed to be met where:

• the parties to the dispute have participated in a mediation conference as directed by DSCV or equivalent mediation service, or
• DSCV or an equivalent mediation service has assessed the matter unsuitable for mediation.

It is not necessary to attempt mediation in exceptional circumstances, such as:

• where there are criminal charges pending against the respondent which relate to the circumstances leading to the PSIO
• where there are allegations of stranger stalking
• where there are allegations of sexual violence
• where DSCV or an equivalent mediation service is not available or operational in a geographical location.

Lawyers will be required to document that mediation has been attempted or the exceptional circumstance if mediation is not suitable.

Where a mediation service has deemed the matter unsuitable for mediation, evidence of this decision should be kept on file.

Fees are not payable for lawyer attendance at mediation.

Cross-applications for intervention orders

VLA will only provide a single grant of legal assistance for cross-applications. At least one of the applications must meet Guideline 9.

Vary, revoke or extend

In cases where the original applicant seeks to respond to the original respondent’s application to vary or revoke a PSIO, assistance may be available under the State special circumstances guideline where the original application for PSIO would have met Guideline 9.2.1.

If a respondent applies to vary or revoke a personal safety order, the application must be submitted together with information addressing:

• the special circumstances guideline
• whether the original application for personal safety order would have met Guideline 9.2.2
• details of a sufficient material change in circumstances to warrant seeking the variation or revocation.

Assistance may also be available to apply for or oppose an application to extend a PSIO under the State's special circumstances guideline. The lawyer should upload all relevant supporting documentation to ATLAS with the application and provide details of:

• how the original matter would have met Guidelines 9.2.1 or 2.2.
• any material change in circumstances.

These matters are all VLA assessed under the standard assessment process.

Grants assessment process

Applications can be submitted through ATLAS using the 'SIMPLIFIED PROCESS – PERSONAL SAFETY INTERVENTION ORDER' template and selecting 'NOT SATISFIED WITH DISCRETION' on the practitioner certification page.

Documentary requirements

The lawyer's file must include:

• a reference to Guideline 9
• a copy of the application for a PSIO, including the complaint
• lawyer's assessment of the strengths and weaknesses of the application for the order
• an assessment of whether the original application would have met Guideline 9
• details of the merits and evidence provided in the original proceedings.

Appeals

Where the original applicant seeks to respond to an appeal in the County Court by the original respondent against the making of an order in the applicant’s favour, assistance may be available under the State's special circumstances guideline where:

• the original application for a personal safety intervention order would have met Guideline 9
• the merits of the matter remain substantially the same.

These matters are VLA assessed under the standard assessment process.

Grants assessment process

Applications can be submitted through ATLAS using the 'VLA ASSESSED – PERSONAL SAFETY APPEALS IN THE COUNTY COURT' template.

Documentary requirements

The practitioner’s file must include:

• a reference to Guideline 9
• a copy of the original application for a PSIO, including the complaint
• lawyer's assessment of the strengths and weaknesses of the application for appeal
• a copy of the appeal notice
• details of the merits and evidence provided in the original proceedings.

Fees and billing

See Costs payable in civil law matters, in the VLA Handbook, for PSIO grants fees and Table A5 – Lump sum fees in Personal Safety Intervention Order Act matters.

More information on the fees payable and notes can be found at Principles applying to payment of fees in Personal Safety Intervention Order Act 2010 matters.

Urgent grants

Where a lawyer obtains an urgent grant for a Personal Safety Intervention Orders Act 2010 case, or the matter for which aid is sought is to be heard on the date the application is received or the following day, the urgent grant fee (for preparation) in Table A5 applies. At all other times the standard preparation fees in Table A5 apply.

Where the matter proceeds before a magistrate and evidence is called, a contest appearance fee may be claimed. If the contested hearing is likely to be of an extraordinary duration, VLA must be notified of the number of days the matter is listed for hearing.

Where the matter does not proceed to a contest

If a matter is listed for a contest but on the day does not proceed to a contest, the appearance fee is claimable. There is no provision in Table A5 for a higher fee where the matter is listed for contest but does not proceed as a contest. Lawyers may only claim the contest appearance fee if the matter proceeds and evidence is called.

Directions hearing

A directions hearing fee is payable where mediation has been attempted (unless exceptional circumstances apply). If the matter resolves at the directions hearing, the appearance fee is payable.

Multiple applicants or respondents

Where a lawyer acts for multiple applicants and/or respondents or in circumstance of cross-applications, only one lump sum fee as set out in Table A5 is payable.