The Family Violence Scheme (FVS) is a new option for people who have experienced family violence and who have accrued fines as a result of family violence. An application can be made to the Scheme under section 10M of the Fines Reform Act 2014 (Vic) (FRA) for the fine to be withdrawn if a person is a victim of family violence and the family violence substantially contributed to the his/her inability to control the offending behaviour or to nominate the driver responsible for the offence (see s 10M of the FRA).
The application needs to establish that the family violence substantially contributed to your client’s ability to control the conduct that constituted the offence or that your client was the registered operator of a vehicle but the family violence substantially contributed to them being unable to nominate a person as the driver.
For example your client might be eligible under the family violence scheme if they were speeding or running red lights to escape a perpetrator of family violence. Similarly your client may be eligible for the scheme if a perpetrator of family violence accrued tollway fines in their name and it was unsafe to nominate them or stop them from using your car. Family violence can also include instances of elder abuse by children and grandchildren against older family members. Applications are determined by a specialist trained family violence team within Fines Victoria.
The meaning of ‘family violence’ under the FVS is the same as the meaning found in s 5 of the Family Violence Protection Act 2008 (Vic) (FVPA).
Applications to the Scheme can be made at any stage in the lifecycle of the fine prior to either:
the expiry of a 7 day notice; or
the making of an attachment of earnings or attachment of debt direction; or
a land charge is recorded; or
property is seized or a vehicle seizure and sale notice has been issued; or
if the infringement has been paid in full; or
an application has already been made for enforcement review on the basis of family violence special circumstances.
Certain types of offences cannot be dealt with under the Scheme including excessive speed, drink and drug driving and boating offences.
How to make an application to the FVS
To apply to the scheme, you need to complete the Family Violence Scheme Application form which includes a statutory declaration detailing your client’s history of family violence and which describes the link between the fines and the family violence. The application also needs to contain one other piece of evidence, for example a Family Violence Intervention Order, Family Violence Safety Notice, report from doctor or case worker, or a statutory declaration from another person such as a family member.
A report or support letter should set out:
how long your client has been affected by family violence;
if they were affected by family violence at the time of offending; and
an opinion as to whether the family violence substantially contributed to your client’s inability to control the offending behaviour or to nominate the actual offender.
What happens is an application to FVS is successful
When an application to the scheme is approved, the relevant fines are cancelled together with any demerit points that may apply. This makes this option far more attractive than special circumstances on the grounds of family violence. If the application is successful, there is no requirement to attend court.
In circumstances where a person is not the driver accumulating the fines, there is the option to defer nomination for up to six months (s 10V FRA). This allows your client time to consider whether nomination is a safer option at a later stage. However, even if a client decides not to nominate, all the fines which are the subject of a successful application under the scheme will be cancelled.
The Director retains the power to send fines back to enforcement agencies for prosecution in very limited circumstances which could end up with a client being charged and summonsed to court (s 10X FRA). However, the Director has indicated that applicants will be given an opportunity to withdraw their application before this occurs, which means that there is no risk that a client will end up in court.
What happens if an application to FVS is refused
Within 21 days of the Director notifying an applicant that their application was not successful, an applicant must pay the fine or take other action (eg, enforcement review, Work and Development Permit application, payment plan). Otherwise, enforcement action will resume in relation to the infringement offence.
Note: The FVS is an alternative to applying for an enforcement review on the basis of family violence and it is not possible to make an application under both the FVS and the enforcement review mechanism: see s 10M(3) FRA.
However if an application for FVS is refused, you can still apply for enforcement review on any basis except family violence.
Application to FVS vs enforcement review based on family violence
Family Violence Scheme
Enforcement review special circumstances (family violence)
Broader definition (FV substantially contributed to conduct)
Strictor causal nexus (FV resulted in being unable to control the conduct)
No risk of going to court
If successful, enforcement agency must withdraw infringement except in limited circumstances.
If Director plans to send fines back to the enforcement agencies, client will be notified and can withdraw application.
If successful, enforcement agency can still elect to commence a proceeding in court (within 90 days) – risk of finding of guilt
No demerit points
Demerit points will apply if goes to court
For more information about the Family Violence Scheme and an application form, see the Department of Justice website here.