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 FVP Act, any family member experiencing violence may obtain an intervention order. “Family member” is defined in the FVP Act (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).
An intervention order is a fast, inexpensive and easily accessible remedy for a family member who needs immediate short-term, and long-term, protection.
Applications for intervention orders are usually heard in the Magistrates’ Court, unless the sole applicant or sole respondent is under 18 years old.
Section 81 of the FVP Act 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 or suspend 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 FVP Act 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 Victorian Government Department of Health and Human Services (DHHS). 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 FVP Act 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 prescribed period, or for an indefinite period).
Once an intervention order is made, the affected family member is known as the “protected person”.
Under section 53 of the FVP Act, 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.
Under the FVP Act (s 74), 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.
Applications for family violence intervention orders are filed with the registrar at a local Magistrates’ Court. A list of Magistrates’ Courts can be found at www.magistratescourt.vic.gov.au. Also, the Magistrates’ Court’s family violence website is useful (https://familyviolence.courts.vic.gov.au).
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) or a written statement with further details of the alleged behaviour is filed too.
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 over two-thirds of all cases and the number of applications initiated by police is increasing.
One of the benefits of a police officer acting as an applicant is that police officers can apply for interim intervention orders by telephone outside normal court hours. This is useful in emergency situations, at night, during weekends, or in isolated country areas where the nearest courthouse is far away.
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. The police cannot issue a notice against a person under 18 years old. Such a safety notice can be issued at any time and can last up to five working 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 or an intervention order is a criminal offence.
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 parent’s written consent, 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 DHHS.
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 the child (s 77 FVP Act).
Usually, when the police or a family member experiencing family violence files an application for an intervention order, the Magistrates’ Court registrar issues a summons that is served personally on the respondent before the hearing date. Service is effected by police officers working close to where the respondent lives.
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 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 is part of the Victoria Police’s Code of Practice.
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 once served.
An intervention order on its own does not necessarily stop or prevent contact with any children. 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 FL Act. The court has the power to amend FL Act orders to make them consistent with the intervention order. Also, even if there are no FL Act 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.
If orders already exist about, for example, spending time with children, the Magistrates’ Court has the power to vary the existing orders so as not to conflict with an intervention order (e.g. where children are to be collected or dropped off). If an order for spending time with children is inconsistent with an intervention order, then the “spending time with” order prevails and the intervention order is invalid to the extent of the inconsistency.
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 for appeals is set out in the FVP Act.
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 the respondent has contravened the order. Unlike an injunction under the FL Act, 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) (see “A note about penalty units”) and/or imprisonment for two years. “Persistent” contraventions (as defined in s 125A FVP Act) attract higher maximum penalties, namely 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).
Applications can be made to vary, revoke or extend family violence intervention orders. Details are set out in sections 108–113 of the FVP Act. It is important to note that intervention orders cannot be automatically extended once the period has expired. An application seeking an extension to an intervention order must be filed at a Magistrates’ Court before the order expires. If the intervention order has expired, then a new application needs to be filed.
When a final family violence intervention order is granted, the respondent becomes a “prohibited person” under section 3 of the Firearms Act 1996 (Vic) (“Firearms Act”) and section 3 of the Control of Weapons Act 1990 (Vic).
Where a final family violence intervention order is imposed, a respondent’s firearm licence is automatically suspended. Police serve the family violence intervention order on the respondent and may seize any firearms, ammunition and licence documents.
The respondent has three months to apply to the Magistrates’ Court under section 189 of the Firearms Act to have their status changed to a “non-prohibited person”. Otherwise, the respondent remains a prohibited person for the duration of the final order, and for a further five years.
The protected family member, who took out the family violence intervention order, will be informed of the section 189 application and will be interviewed by Victoria Police to find out if and why they object to the perpetrator retaining or obtaining a firearms licence. Any evidence relating to previous violence involving firearms or related threats needs to be provided to the police. In many cases the police will oppose the application on behalf of the protected person. If not, the protected person can oppose the application with the assistance of a lawyer.
Generally, you cannot publish, or cause to be published, details about intervention order proceedings that may identify the parties or witnesses or locality involved. The exception to this anti-publication provision is where you can “name and shame” offenders if they contravene an intervention order or safety notice. Seek legal advice before doing this.
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 (e.g. if a Victorian intervention order is registered in NSW, it becomes enforceable under NSW law, and not under the FVP Act).
Also, New Zealand protection orders can be registered and enforced in Victoria, and vice versa.
In 2006, the Victorian Law Reform Commission (VLRC) published a review of family violence laws. Many of the VLRC’s recommendations appear in the FVP Act and in subsequent amendments. Other recommendations have been taken up by Victoria Police and by various government departments.
The Victorian Sentencing Advisory Council has published reports about sentencing practices for the contravention of family violence intervention orders and safety notices, and about recidivism (reoffending) in contravention cases (see www.sentencingcouncil.vic.gov.au).
In 2014, the Victorian Government established a Royal Commission into Family Violence in February 2015. The Royal Commission released its comprehensive, multi-volume report in March 2016. There are 227 recommendations that address prevention, risk assessment, education, resources, coordination and evaluation. There are a few recommendations about the FVP Act.
The Victorian Government has announced initiatives and funding to implement many of the Royal Commission’s recommendations. These reforms include implementing procedural changes under the FVP Act, establishing information-sharing schemes, rolling out the Family Violence Court Division (see “Family violence courts”) to 14 major Magistrates’ Courts throughout Victoria in the next two years, and creating 17 one-stop multidisciplinary hubs within the next five years.