Family violence intervention orders (state law)

 

Victims of family violence can seek an Intervention Order for their safety and protection and the process of applying is explained. Each state and territory allows for portability, so applicants can register and enforce orders nationwide.

Who can obtain a family violence intervention order?

Under the FVPA, any family member experiencing violence may obtain an intervention order. “Family member” is defined in the FVPA (s 8) and includes a current or former spouse, a domestic partner (see expanded definition below), a person who has/has had an intimate personal relationship with the respondent (whether or not it is sexual in nature; this includes boyfriend–girlfriend relationships, same-sex relationships, parties involved in a brief sexual relationship, and even close platonic friends), a parent, a child, a relative (including immediate and extended family) and any other person whom the relevant person views as being like a family member in certain prescribed circumstances (s 8(3)).

Domestic partner” is an adult person to whom the person seeking protection is not married but is in a relationship with as a couple, irrespective of their genders and whether or not they are living together (s 9). Paid carers and co-tenants are excluded. “Relative” also covers a wide range of people (s 10).

What is a family violence intervention order?

An intervention order is a fast, inexpensive and easily accessible remedy for a family member who needs immediate short-term, and long-term, protection.

Section 81 of the FVPA sets out some of the conditions that may be included in a family violence intervention order. An intervention order may:

prohibit the respondent from committing family violence against the protected person;

exclude the respondent from the protected person’s residence (called an “exclusion condition”);

restrict a person’s access to any premises and/or a specified area;

prohibit the respondent from contacting the protected person;

direct the use of specific personal property;

prohibit the respondent from causing another person to engage in conduct prohibited by the order;

require the respondent to attend counselling;

revoke any licence/permit to carry or use firearms.

If the court decides to make an intervention order, the court must consider whether to include an exclusion condition (s 82). The FVPA prescribes the circumstances the court must examine before making an order. There are cross-references to residential tenancy laws and to accommodation provided by the Department of Health and Human Services. In addition, there are extra circumstances for the court to consider if the respondent to such an exclusion condition is a child (s 83). Also, the FVPA sets out procedures for orders relating to personal property (ss 86–88), family law (ss 89–93) and counselling (ss 129, 130).

An intervention order may be:

interim (for a short period); or

final (for a longer or indefinite period).

Interim intervention orders

Under section 53 of the FVPA, an interim intervention order can be made by a magistrate who is satisfied on the balance of probabilities that an interim order is necessary (pending a final decision about the application):

to ensure the safety of the affected family member;

to preserve the property of the affected family member; or

to protect a child who has been subjected to family violence committed by the respondent.

Final intervention orders

Under section 74 of the FVPA, a final intervention order can be made by a magistrate who is satisfied on the balance of probabilities that the respondent has committed family violence against the affected family member and is likely to do so again.

How do I get a family violence intervention order?

Applications for family violence intervention orders are filed with the registrar at a local Magistrates’ Court (a list of Victoria’s Magistrates’ Courts can be found at www.magistratescourt.vic.gov.au). (Also seeFamily violence courts”.)

An affected family member can apply for an intervention order in person, or by lodging a written application, or through another person (e.g. a friend, refuge worker or solicitor), or through the police. There is no filing fee. One application can be used to cover a parent and their children against the same respondent. Sometimes an affidavit (i.e. a sworn statement) is filed too.

Police applying for intervention orders

Police can apply for an intervention order on behalf of a family member experiencing violence – even without the consent of the affected family member.

Police are becoming more active and interventionist in family violence cases. Police now act as applicants (i.e. the person seeking the intervention order) in two-thirds of all cases and the number of applications they make is increasing.

One of the benefits of a police officer acting as an applicant is that police can apply for interim intervention orders by telephone or fax outside normal court hours. This is particularly useful in emergency situations, at night, during weekends, or in isolated country areas where the distance to the nearest courthouse makes it impracticable to attend court in person.

Police also have “holding powers”, where a police officer can apprehend and detain an adult for six hours (or for 10 hours if extended by a court) in order to apply for and/or serve an intervention order.

In addition, police officers of the rank of sergeant and above have the power to issue a “family violence safety notice” to ensure the safety of a family member, or to preserve property, or to protect a child. Such a safety notice can be issued at any time and can last up to five days until a court formally hears an application for an intervention order. A safety notice has the same effect as an interim intervention order and is a very useful tool for providing immediate protection. Breaching a safety notice is a criminal offence.

Affected family members under 18 applying for intervention orders

If the affected family member is under 18 years old, the application for an intervention order can be made on their behalf by:

a parent, or

any person with the written consent of the parent, or

a police officer.

However, the child may apply for the order themselves, if they are aged 14 to 17 years, and with leave of the court. In order to grant leave, the court must be satisfied that the child understands the nature and consequences of an intervention order.

Such applications are usually heard in the Children’s Court instead of the Magistrates’ Court.

If the affected family member wants to go to the police, it is best to seek legal advice first to discuss all the options; especially since there may be a risk of an application for a child protection order being taken out by the Department of Health and Human Services.

Before making a final intervention order, a court must consider whether there are any children who are family members of the affected family member, or of the respondent, who have been subjected to family violence committed by the respondent. In such a case, the court may grant an intervention order on its own initiative to include another child.

What happens after a family violence intervention order application has been filed?

Usually, when a family member experiencing family violence files an application for an intervention order, the Registrar of the Magistrates’ Court issues a summons that is served on the respondent before the hearing date.

However, if an applicant alleges that there has been an assault or threatened assault – and the Registrar is satisfied that the family member’s personal safety or property would be seriously threatened if the respondent is not apprehended and brought into custody – a warrant can be issued for the apprehension of the respondent. The applicant must then seek an intervention order in the same way.

It is now a state-wide police policy that proceedings brought by police should be initiated by way of application and warrant where there are concerns for the safety of a family member or where criminal offences are involved. This policy forms part of the Code of Practice for Victoria Police to implement strategies in family violence cases.

Does the respondent have to attend court?

Intervention orders can be made ex parte (i.e. without the respondent being present). In urgent cases, an interim intervention order can be made ex parte if the court is satisfied that it is necessary to ensure the safety of the affected family member or to preserve their property. A final intervention order can be made ex parte if the respondent cannot be located or chooses not to attend.

Family violence intervention orders and Family Law Act orders

If a court makes an intervention order, it has the power to revive, vary, discharge or suspend orders made about any relevant children under the FLA. The court can amend FLA orders to make them consistent with the intervention order. Also, even if there are no FLA orders in relation to a child, the court can include conditions in the intervention order about contact with that child.

Note that if an application for an intervention order has been filed with the Magistrates’ Court, the same applicant cannot apply for an injunction in a family law court (Family Court or Federal Circuit Court) for the same violent or abusive circumstances, unless the earlier proceedings have lapsed or been discontinued.

Duration and appeals of family violence intervention orders

An intervention order may remain in force indefinitely or for any specified period. Most commonly, intervention orders last for one to two years. If the respondent is a child, the final intervention order must not remain in force for more than 12 months unless there are exceptional circumstances.

Both the applicant and the respondent can appeal an intervention order in the County Court; the procedure is set out in the FVPA.

Breaching family violence intervention orders

A power of arrest without warrant automatically attaches to an intervention order for the duration of the order. This authorises state police to arrest and detain the respondent if they believe on reasonable grounds that they have contravened the order.

Unlike an injunction under the FLA, a contravention or breach of an intervention order is a criminal offence for which the police should prosecute. If the court is satisfied “beyond a reasonable doubt” that there has been a breach, it may impose a fine of maximum 240 penalty units (pu, seeA note about penalty units”) and/or imprisonment for two years. “Persistent” contraventions (as defined in s 125A FVPA) attract higher maximum penalties (up to 600 pu and/or imprisonment for five years). As in other summary crime matters, other prescribed penalties are available (see Sentencing in the Magistrates’ Court).

An intervention order cannot be automatically extended once the period has expired. A fresh application must be filed at a Magistrates’ Court and the same procedure followed.

Name and shame

Generally, you cannot publish or cause to be published, details about intervention order proceedings that may identify the parties or witnesses or locality involved. There is now an exception to this anti-publication provision. You can “name and shame” offenders if they contravene an intervention order or safety notice; but legal advice should be sought before doing so.

Portability of family violence intervention orders

Within Australia

Each Australian state and territory allows for portability. This means that a protected person with an interstate order can register, vary and enforce the order in Victoria without going to court. Similarly, a protected person with a Victorian intervention order can register and enforce that order interstate. Once registered, breaching the order attracts the penalties of the new state. For example, if a Victorian intervention order is registered in New South Wales, it becomes enforceable under NSW law, and not under the FVPA.

Overseas

New Zealand protection orders can be registered and enforced in Victoria and Victorian intervention orders can be registered and enforced in New Zealand.

On-going developments in family violence intervention orders

In 2006, the Victorian Law Reform Commission (VLRC) published a detailed review of family violence laws. Many of the VLRC’s recommendations appear in the FVPA and subsequent amendments. Other recommendations have been taken up within Victoria Police and by various government departments. There are occasional amendments to the FVPA and it is important to check whether any changes have been made and come into effect.

The Victorian Sentencing Advisory Council has published reports about sentencing practices for the contravention of family violence intervention orders and safety notices.

In 2014, the Victorian Government created a new portfolio with a Minister for the Prevention of Family Violence, and later that year established a Royal Commission into Family Violence. The Royal Commission is due to release a report in 2016.