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How duty lawyers can help with family violence intervention orders

How duty lawyers can help people who attend court with legal advice.

VLA provides duty lawyer services for intervention orders at many Magistrates’ Courts. VLA also funds community legal centres to provide complementary services.

Generally, VLA assists respondents while the community legal centre assists applicants. In some cases, the two services may swap roles, for example, if there is a conflict of interest.

A Duty Lawyer can:

  • give advice
  • provide options
  • negotiate outcomes with the other party, and
  • tailor the order so it is specific to your needs whilst still promoting safety.

VLA also provides grants of legal assistance to applicants and respondents for intervention orders in certain circumstances. They may also be eligible for legal assistance if the matter goes to a contested hearing.

See Protected witnesses.

Breach of intervention orders

Under the criminal law duty lawyer guidelines, a breach of family violence orders is a significant charge (see 'What is a significant charge?' under The criminal law duty lawyer service). Depending on the facts and circumstances of the mater, and the person's priors, if a person meets the income test they may get advice and in court advocacy (legal representation in court) from a duty lawyer.

If the person does not meet the income test (see 'What is the income test?' under The criminal law duty lawyer service) they may need to see a private lawyer.

The criminal law duty lawyer service

For more information about the duty lawyer service, see:

Access to duty lawyer services

Victoria Legal Aid has new guidelines about duty lawyer services for adults who attend the Magistrates' Court for a criminal offence. The guidelines are designed to make sure that legal aid funds are spent on people who are most in need. We give priority to people who:

  • are in custody, and
  • cannot afford to pay for a private lawyer.

People in custody

Duty lawyers give priority to people who have been remanded in custody and are being brought to court for the first time on that charge. Lawyers will provide advice and, where appropriate, make an application for bail.

If the accused has a private lawyer, the duty lawyer will contact the lawyer to make sure they know that their client is in custody.

No income test applies to people in custody.

What services are available to other clients?

For all other people accused, the duty lawyer service gives:

Information

Duty lawyers have fact sheets about specific offences and what happens in court. Fact sheets are available to anyone charged with an offence.

Advice

A duty lawyer gives advice about the law, how it applies and what happens in court. A duty lawyer may negotiate with the prosecution.

To get advice, the accused person has to satisfy an income test.

In-court advocacy

A duty lawyer may advocate (go into court and speak for) an accused person in the court room if:

  • the person meets the income test, and
  • if they have a significant charge against them, or
  • if they satisfy one of the priority criteria.

What is the income test?

Before a person can get advice or a lawyer representing them in court they have to pass an income test. To satisfy the test the person must either:

  • get Centrelink benefits
  • be financially independent and their weekly after tax income is less than:
    • $750.00 if they have no dependants, or
    • $850.00 if they have one or more dependants
  • be supported by another person who earns less than $850.00 after tax per week.

The person does not have to give proof of their income. Details of their income will be written on a Duty Lawyer Record sheet. If they are only working for a short period of time, the person can give their average income over the last three months.

Note: There is no income test if the person is in custody and they are making their first court appearance on that charge.

Who is a priority client?

Duty lawyers give priority to clients:

  • with an intellectual disability, an acquired brain injury or other mental illness
  • who are experiencing homelessness
  • who cannot effectively communicate in English
  • who are Indigenous Australians.

A duty lawyer will represent a priority client in court (in court advocacy) if they satisfy the income test unless the charge is minor.

What is a significant charge?

If a client is not one of VLA's priority clients, the duty lawyers can give in-court advocacy if the person is facing a significant charge. A significant charge is one where the accused is at a real risk of imprisonment, a community corrections order or a substantial fine ($1500 or more). This requires an assessment of prior convictions.

Significant charges include:

  • dishonesty offences (but not shop theft)
  • failing to appear (with substantive charges)
  • criminal damage
  • aggravated burglary and burglary
  • recklessly causing serious injury, intentionally causing injury, and assault by kicking
  • possession of a prohibited weapon
  • stalking
  • threats to kill
  • breach if family violence or personal safety intervention order
  • third drink drive
  • possession of a drug of dependence (not just cannabis)
  • third drive while suspended or disqualified offence.

What are minor matters?

'Information only' is provided to all accused people who face minor charges. That is, in matters where a duty lawyer will make no difference to the outcome and the maximum penalty is a fine. These include:

  • licence restorations (licence eligibility orders)
  • prosecutions under the Domestic Animals Act 1996
  • offences prosecuted by the Department of Transport (no ticket, feet on seats, smoking etc.)
  • minor traffic matters where no jail term (speeding, unregistered vehicle, no seatbelt, hoon driving etc)
  • public drunkenness
  • applying to remove an alcohol interlock
  • not filing a tax return
  • minor offences by taxi drivers like failing to wear a uniform or display photo
  • fines where person elects to take the matter to court
  • fishing without a licence (but not commercial fishing)

When is advice only provided?

Advice only is provided to people facing a straightforward charge who do not meet the priority criteria.

A straightforward charge is one where the legal issues are narrow and the penalties are likely to be low level fines and/ or loss of licence.

The accused will be given a guide to assist them in preparing what they want to say in court.

What is a straightforward charge?

A straightforward charge is one where the legal issues are narrow and the penalties are likely to be low level fines and licence loss. This would ordinarily include:

  • careless driving
  • infringements (but not in Infringements Act s. 160 applications for special circumstances or where accused wants to argue that jail would be excessive, disproportionate or unduly harsh)
  • other low level driving offences that are listed for diversion
  • unlicensed driving
  • hinder police (no assault)
  • possession of drugs of dependence (small amount of cannabis)
  • rehearings
  • appeals against a decision by a registrar to refuse revocation
  • variation of a CCO (elected where there is consent)
  • drug driving
  • first or second drink driving
  • use a drug of dependence
  • first or second drive while disqualified or suspended offence
  • other summary assaults
  • shop theft.

This would depend on the facts and circumstances of the case and whether the accused person had many prior convictions.

When is information only provided?

Information only is provided to all accused who are facing minor charges. Minor charges are those where a fine is the most severe penalty.

More information

To find the list of VLA duty lawyer rosters see Service directory—Browse all rosters(opens in a new window).

See the legal information on the VLA website:

References

VLA Professional support

For a direct link to guidelines see Practice resources—Criminal—Duty Lawyer Services(opens in a new window).

Updated