From July 2024, Tasmanian Courts have the power to declare a person convicted of a family violence offence, a serial family violence perpetrator. Such declarations are designed to apply to repeat family violence offenders. This article will explain:

1. Who serial family violence perpetrator declarations apply to
2. When a court might make or decline to make a declaration
3. What happens if a declaration is made

First, it is important to understand what a family violence offence is. A declaration can only be made if a court is sentencing a person for a family violence offence.

Family Violence Offences

A family violence offence is any offence involving family violence. In Tasmania, family violence is defined by the Family Violence Act 2004 to only include conduct against a person's spouse or partner (including ex-spouses). Examples of offences which can constitute family violence, if committed against a spouse, include:

• assault, including sexual assault and indecent assault
• destroying or injuring property
• stalking
• contravening a family violence order (an FVO), interim family violence order (an IFVO) or police family violence order (a PFVO)
• economic abuse
• emotional abuse or intimidation

The above list is not a complete list, but covers the majority of common family violence offences.

Who is eligible for a Serial Family Violence Perpetrator Declaration? 

The following circumstances must apply before a court can make a serial family violence perpetrator declaration:

1. The person must be appearing before a court to be sentenced for a family violence offence, and
2. The person must be older than 18, and
3. The person has been convicted of
   1. two indictable family violence offences, which includes the current offence (at least two committed on different days)
   2. three family violence offences whether indictable or summary (at least three committed on different days)
   3. convicted of persistent family violence
4. The sentencing Magistrate or Judge must be of the opinion that the declaration is warranted
5. All of the convictions must be within a 10-year period before the declaration

For example, if an adult person breached a family violence order by calling their ex-partner when they were not allowed to, and those calls occurred on three separate days, a sentencing court could make a declaration if they thought it was warranted.

When might a court be of the opinion that a declaration is warranted? 

Section 29A(4) of the Family Violence Act 2004 sets out the factors to be taken into account in deciding whether a declaration is warranted. Those factors are:

1. The nature and circumstances of the family violence offences
2. The risk that the offender may commit further family violence offences
3. The offender's antecedents and character
4. Any other matter that the court or judge considers relevant

The court can order the Director of Corrective Services or any other person to prepare a report in relation to the risk of the offender committing further family violence offences or other relevant matters. They can use that report in deciding whether to make a serial family violence perpetrator declaration.

The legislation uses both mandatory and discretionary language when referring to the court's power to make a declaration. s29A(2) says that a court 'is to declare' a person a serial family violence perpetrator if they meet the criteria above. However, one of the criteria is that the court forms the opinion that a declaration is warranted. Thus, a court must consider whether to make a declaration in every case where a person meets the qualifying criteria, but a declaration can be avoided if a court forms the view that in the circumstances of a particular case, it is not warranted.

Some of the factors that will help a court form its opinion in addition or in expansion of the above legislative factors, include:

1. The seriousness of the current and previous offences
2. The person's general criminal record including their history of compliance with court orders
3. Their record for violence generally
4. The number and type of previous family violence offences
5. Any gap in their offending history
6. Any rehabilitative steps the person has taken

What happens when a declaration is made?

A serial family violence perpetrator declaration remains in force for up to five years.

The consequences of a declaration can include:

• The court must make a family violence order (FVO) if satisfied on the balance of probabilities that a person has and may again commit family violence.
• A court can obtain a report about a person's suitability for electronic monitoring.
• The court must direct that the declaration be recorded on the person's criminal record
• If the person commits a future family violence offence while the declaration is in force, it must be taken into account by the later sentencing court as an aggravating factor
• Requiring the person to undergo a behavioural change program
• Restricting a person's ability to possess a firearm

The above is not an exhaustive list but includes most of consequences of a serial family violence perpetrator declaration.

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