Intervention orders and Family violence safety notices | Melbourne | Dandenong

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Magistrates’ Court

The Magistrates’ Court has jurisdiction to deal with any intervention order application.

The FVPA gives jurisdiction over family violence intervention orders to the Magistrates’ Court and the Children’s Court.

A Family Violence Intervention Order (FVIO)

A family violence intervention order is a court order designed to protect a person from family violence. The order requires the respondent to engage or refrain from engaging in the conduct specified in the order. The Act defines a family violence intervention order as either a final order or an interim order.

The Magistrates’ Court retains jurisdiction over final orders that are confirmed on appeal to the County Court or Supreme Court and that parties can appeal an order as extended or varied.

[FVPA s11]

Interim orders are designed to provide urgent, short-term protection for people threatened by family violence, while final orders providing longer-term protection.

In addition to a Victorian family violence intervention order, a person may be a respondent to or a protected person under a ‘recognised DVO’ under the National Domestic Violence Order Scheme Act 2016. The National Scheme Act commenced operation on 25 November 2017.

Police response to family violence

Police responding to family violence may:

• arrest a person for a criminal offence (though this will not initiate the intervention order process);
• issue a family safety violence notice; or
• apply to the Magistrates’ Court for the registrar to issue:
  • a summons requiring the respondent to attend at court; or
  • a summons and for the after-hours magistrate to make an interim intervention order; or
  • a warrant.

Family violence safety notices

Family violence safety notices offer police an alternative procedure to provide temporary protection for an affected family member, her property and her children. The safety notice provides similar protection to an intervention order. The notice can be initiated and issued by police on the spot without applying to the court.

A safety notice also constitutes an application for a family violence intervention order for the protected person against the respondent, and a summons for the respondent to appear on the first mention date.

The first mention date for the application for the intervention order initiated by a safety notice must occur within five working days of when the family violence safety notice is served.

When a police officer issues a family violence safety notice, that officer, or the officer who originally applied for the notice, must:

• ask the respondent to provide an address for service of documents; and
• advise the respondent that if a police officer is unable to locate the respondent to serve them with a document under the Act, the officer may, under s 207, seek information about the respondent from public sector organisations

Conditions on a family violence safety notice

A safety notice may include any of the conditions in FVPA s81(2)(a)–(f), including:

• prohibiting family violence;
• excluding the respondent from the affected family member’s residence;
• directing the respondent to return property to the affected family member, or allowing the respondent access to reclaim property from the residence;
• prohibiting the respondent from approaching or contacting the affected family member;
• prohibiting the respondent from being near particular addresses; and
• prohibiting the respondent from inducing others to engage in conduct prohibited by the order.

The safety notice cannot revoke or suspend a weapons approval or exemption, or a firearms authority (compare s81(2)(g), (h)).

After an order is made

Variation, Revocation and Extension of intervention orders

The court may order the variation, revocation or extension of a family violence intervention order on the application of a party to the proceeding (or where appropriate their parent/guardian) and, under limited circumstances, on its own initiative.

[FVPA ss100, 106]

In deciding whether to vary or revoke an order, the court must have regard to all the circumstances and in particular:

• the applicant’s reason for seeking the alteration;
• the safety of the protected person;
• whether the protected person is represented;
• the views of the protected person (or their guardian) on the requested changes.

The FVPA also allows the court to make an interim order varying a family violence intervention order. When making an interim variation of an intervention order, Division 1 and Division 2 of Part 4 of the Act apply with any necessary changes as if the interim variation were an interim order.

Contravention of a family violence intervention order

Contravening a family violence intervention order is a criminal offence. There are two elements to this offence:

• either:
  • the accused has been served with a copy of the order; or
  • the accused has received an explanation of the order in accordance with s57(1) or s96(1); and
• the accused breached the order.

In determining whether an accused has contravened a family violence intervention order, it is irrelevant whether:

• any or all of the accused’s conduct, which constitutes the contravention offence, occurred outside Victoria, as long as the protected person was in Victoria at the time that the accused’s conduct occurred; or
• the protected person was outside Victoria at the time when the accused’s conduct, which constitutes the contravention offence, occurred, as long as the conduct occurred in Victoria.

[FVPA ss123(2A), 123(2B)]

It is important to convict offenders for contravention of an intervention order pursuant to the Act under which the original intervention order was made, whether that is the Family Violence Protection Act 2008 or the Personal Safety Intervention Orders Act 2010. It is likely that any conviction recorded under the wrong Act will be set aside on appeal.

[See e.g. Ellis v Caine [2010] VSC 386]

Penalty

The maximum penalty for contravention of an intervention order is level 7 imprisonment (2 years), a level 7 fine (240 penalty units) or both.

[FVPA s123(2)]

Defences

It is a defence to a charge of contravening a family violence intervention order that:

• an accused was a respondent under a family violence intervention order;
• a family violence safety notice in relation to the same protected person and the accused was in force at the time the contravention of the intervention order was alleged to have occurred; and
• the accused’s conduct did not contravene the family violence safety notice.

[FVPA s37(3)]

The onus is on the defence to establish this defence on the balance of probabilities.

[Evidence Act 2008 s141(2); R v Carr-Briant [1943] KB 607]

This defence, along with a similar defence for contravention of a safety notice, means that if the accused is the respondent under both a family violence safety notice and an intervention order in respect of the same protected person, the order with the least restrictive conditions prevails, to the extent of any inconsistency between the two.

Source: www.judicialcollege.vic.edu.au

What is family violence?

Family Law Act 1975 (Cth)

Section 4AB of the Family Law Act 1975 (Cth) (the Family Law Act) defines family violence as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family… or causes the family member to be fearful”.

Examples of behaviours that may constitute family violence include (but are not limited to):

• physical assault
• psychological or emotional abuse
• sexual assault
• harassing or intimidating a person or subjecting them to derogatory taunts
• intentionally damaging or destroying property
• intentionally causing death or injury to an animal
• financial abuse by unreasonably denying a person financial autonomy or withholding financial support, and
• isolating a person from friends or family or depriving them of their liberty

A person may commit family violence if they engage in coercive controlling behaviour. Coercive control is understood as a course of conduct by one person aimed at dominating or exerting power over the other. It can include a pattern of controlling and manipulative behaviours such as (but not limited to):

• emotional manipulation including humiliation and threats
• surveillance and monitoring, often carried out online
• isolation from friends and family
• rigid rules about where the person can eat, sleep or pray, and
• placing limits on economic autonomy

Both men and women can experience family violence. However, women are significantly more likely than men to experience violence from a current or former partner and the impacts of this violence are more likely to be severe for women, including hospitalisation or death. Understanding the gendered nature of family violence is crucial to developing effective responses within the legal system.

Family Violence Protection Act 2008

The Family Violence Protection Act 2008 seeks to maximise the protection and safety of persons who have experienced family violence and promote the accountability of perpetrators of family violence for their actions.

The Act has three primary purposes:

• to maximise safety for children and adults who have experienced family violence;
• to prevent and reduce family violence to the greatest extent possible; and
• to promote the accountability of perpetrators of family violence for their actions.

The Act empowers the police to issue Family Violence Safety Notices. These notices are for use outside of court hours and provide police with another tool to ensure that immediate protection is available when police respond to an incident.

Family Violence Safety Notices may include the same conditions as a family violence intervention order and last until the application for a family violence intervention order is brought before the court.

The Family Violence Protection Act 2008 extends the definition of ‘family violence’ to behaviour that is physically or sexually abusive, emotionally or psychologically abusive, threatening or coercive, or in any other way controls or dominates the family member and causes that family member to fear for his or her safety or wellbeing or for the safety or wellbeing of another person.

Examples of behaviour that may be considered family violence for the purposes of the Act include:

• causing a child to hear or witness, or otherwise be exposed to the effects of, family violence;
• coercing a family member to relinquish control over assets and income;
• removing or keeping a family member’s property without permission, or threatening to do so;
• threatening to disclose a person’s sexual orientation to the person’s friends or family against the person’s wishes;
• threatening to withhold a person’s medication;
• preventing a person from making or keeping connections with the person’s family, friends or culture, including cultural or spiritual ceremonies or practices, or preventing the person from expressing the person’s cultural identity; or
• threatening to commit suicide or self-harm with the intention of tormenting or intimidating a family member.

Apply for an Intervention Order FAQ

Who can apply for an intervention order?

Any person can apply for an intervention order either under the Family Violence Protection Act 2008 where there is a family relationship, or under the Personal Safety Intervention Orders Act 2010 if no family relationship exists.

How do I apply for an intervention order?

An application for an intervention is made to the Registrar of the Magistrates' Court of Victoria. An appointment is necessary at some metropolitan courts, so it is best to call in advance to organise a booking. An application for an intervention order should be made at the court closest to where you live. A member of the Victoria Police may also assist you when making an application for an Intervention Order.

Are Intervention orders and restraining orders the same things?

Yes, each state and territory can have different wording to describe Intervention Orders. It generally depends on the legislation governing the particular state or territory.

Do I need a lawyer for an interim intervention order proceeding?

Intervention orders are serious. It is important you understand exactly what an intervention order is and how it will affect you. It is also important you understand the options available to you. Getting some legal advice will help you understand the process, your rights and your options.

If you are a respondent to a family violence intervention order proceeding and you intend to contest an order being made against you, you will not be allowed to give the court your version of events or call any evidence or witnesses to dispute what has been alleged in the application unless you have a lawyer representing you. The registrar of your local court can assist you with further information about respondents needing representation at contested hearings.

Can my partner and I have one intervention order that protects both of us?

No, your partner and yourself must make separate applications.

I have been told that I need to know the full name and address of the person that I need an intervention order against, is this true?

It is really important to have as many details as possible when making an application for an intervention order otherwise the order will not able to be given to the respondent by police and the effect of the order will have no value. The court may not be able to process your application depending on the information you provide. Contact your local court for further information if this situation applies to you.

How much does an intervention order cost?

There is no fee attached to Intervention Orders, for either party. If you are legally represented, naturally you will have to pay the legal costs of your solicitor. You should discuss this with your solicitor.

Will the Court arrange an interpreter for me?

The Magistrates' Court will provide interpreter services for either party involved in an intervention order proceeding. If you know that you require an interpreter for a specific day, you should provide the Court with as much notice as possible to ensure an interpreter is available on that day.

Source: magistratescourt.vic.gov.au