Under the FVPA, a victim of family violence may obtain an intervention order in the local Magistrates’ Court. In many cases it is a fast and easily accessible remedy for a victim who needs immediate short-term protection. An order may be:
- interim (for a short period); or
- final (for a longer or indefinite period).
Orders may also be made ex parte(without the other party being present) either as an interim intervention order (if urgent) or as a final intervention order if the other party (i.e. the respondent) cannot be located or chooses not to attend.
Under section 53 of the FVPA, an interim intervention ordermay 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 property of the affected family member; or
- to protect a child who has been subjected to family violence committed by the respondent.
Under section 74 of the FVPA, a court may make a final intervention orderif 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.
“Family violence” is very broadly defined in the FVPA. It includes threats, physical and sexual abuse, emotional and psychological abuse, economic abuse, damage to property, injury to animals and other threatening, coercive or in any way controlling and dominating behaviour which makes a family member fear for their safety or well-being or for the safety or wellbeing of another person. The FVPA gives examples of these different forms of family violence.
In respect of a child, family violence is behaviour that causes a child to hear or witness or otherwise be exposed to the effects of family violence as defined. Again examples are given in the Act itself.
The victim of family violence is called the “affected family member”. An affected family member is broadly defined in the FVPA and includes a current or former spouse, domestic partner (see below), a person who has or has had an intimate personal relationship with the respondent (see below), a parent, child, a relative (including immediate and extended family) and any other person whom the relevant person views as being like a family member having regard to certain prescribed circumstances.
“Domestic partner” means 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. This covers heterosexual and same-sex de facto couples, as well as non-cohabiting heterosexual and same-sex couples. Paid carers and co-tenants are excluded.
As for a family member who is a person “who has or has had an intimate personal relationship” with the respondent, this includes boyfriend or girlfriend relationships, homosexual couples, and parties involved in a brief sexual relationship, and perhaps even includes close platonic friends.
Once an intervention order is made, the affected family member is called the “protected person”.
It is up to the applicant (the person seeking the order) to convince the magistrate that such family violence has taken place and an intervention order is necessary for protection. In the case of seeking a final intervention order, the applicant must also show that family violence may occur again if an order is not granted. If available, evidence of any witnesses, doctors or police should be tendered in support of the application.
The respondent may resist the application and there may be a contested hearing, with or without legal representation on either side. The FVPA prescribes the procedures and rules about giving evidence and being cross-examined. In urgent cases, an order may be made ex parte on oral evidence if the court is satisfied that it is necessary to ensure the safety of the family member or to preserve property of the family member.
In some cases an interim or final order may be made by consent, even where the court is not satisfied as to any of the grounds alleged by the applicant and whether or not the respondent admits to any of the behaviour alleged.
In some cases parties may agree to an “undertaking”, which is like a legal promise to behave. Undertakings are not usually recommended, as they are not enforceable and do not involve the police. However, if an undertaking is broken, a party can revive the application for an intervention order.
In all cases the affected family member can apply for an intervention order in person, by lodging a written application, or through another person (e.g. a friend, refuge worker or a solicitor) with the victim’s written consent. The police can also apply for an intervention order. Applications are filed with the Registrar at a local Magistrates’ Court. There is no filing fee or stamp duty. One application can be used to cover a parent and any children against the same respondent.
Police may act as applicants even without the consent of the victim. Police now act as applicants in two-thirds of all cases and the number of applications is increasing.
Police may also apply for interim intervention orders in emergency situations by telephone or fax machine outside normal court hours, or even during the day when distance to the nearest courthouse makes it impracticable for the police to attend in person. This is particularly useful in emergency situations at night, during weekends or in isolated country areas.
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 or 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 outside of court hours and lasts until a court 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. Breach of a safety notice is a criminal offence.
If the victim or affected family member is under 18 years old, the application can be brought by a parent, any person with the written consent of the parent, the police, or by the child in person if aged 14 to 18 years (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 victim wants to go to the police, it is best to seek legal advice first to discuss all the options. There may be a risk of a protection application being taken out by the Department of Human Services (DHS).
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 that child.
Under the separate Personal Safety Intervention Orders Act 2010 (Vic) (“PSIOA”), it is also possible to obtain a personal safety intervention order for “stalking” as defined under section 10 of that Act. In such a case, the affected person/applicant and the respondent need not be in one of the prescribed relationships under the FVPA (i.e. a family member). Stalking is less common in family violence situations and is a more common offence between neighbours, parties who hardly know one another, if at all, or acquaintances. Cyber-stalking is also covered.
Stalking is, of itself, a criminal offence under section 21A of the Crimes Act 1958 (Vic).
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 for counselling; or
- revoke any licence or permit to carry or use firearms.
If the court decides to make an intervention order, the court must consider whether to include an exclusion order. The FVPA prescribes the circumstances that the court must look at before making an order. There are cross-references to residential tenancy laws and to accommodation provided by the DHS. In addition, there are extra circumstances for the court to consider if the respondent to such an exclusion condition is a child.
As for counselling, the FVPA sets out procedures relating to counselling orders.
If a court makes an intervention order, it has the power to revive, vary, discharge or suspend Family Law Act 1975 (Cth) (“FLA”) orders in respect of children to the extent that they are inconsistent with the intervention order. Even if there are no FLA orders in relation to a child, the court can include conditions about contact with that child.
An intervention order may remain in force indefinitely or for any specified period. Most commonly, intervention orders are made to 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 have a right of appeal to the County Court against any decision of a magistrate. Time limits apply.
Usually, when a victim files an application, the Registrar of the Magistrates’ Court issues a summons which 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 personal safety or property of the family member would be seriously threatened if the person is not apprehended and brought into custody, a warrant may be issued for the apprehension of that person. 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.
An intervention order may be made even though the respondent has been charged with an offence arising out of the conduct which caused the application to be made. Criminal law proceedings may remain despite the making of an intervention order.
If you are married or in a relationship where there is a child and are seeking such an order, you need to be aware that if proceedings are started in the Magistrates’ Court for an intervention order, they cannot later be initiated by the same applicant in a family law court (Family Court or Federal Circuit Court) for a restraining order in respect of the same violent or abusive circumstances, unless the earlier proceedings have lapsed or been discontinued.
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 and/or imprisonment for two years. “Persistent” breaches as defined in the Act attract higher maximum penalties. As in other summary crime matters, a range of other prescribed penalties is also available (see Chapter 3.5: Sentencing in the Magistrates’ Court).
An intervention order cannot be automatically extended once the period (if any) has expired. A fresh application must be filed at a Magistrates’ Court and the same procedure followed.
Each state and territory allows for portability. A victim with an interstate protection order can register, vary and enforce the order in Victoria, and a victim with a Victorian intervention order is able to register and enforce that order interstate. The victim will not need to go through another court process and can carry the protection order with them.
New Zealand protection orders can also be registered and enforced in Victoria and Victorian intervention orders can be registered and enforced in New Zealand.
Specialist family violence courts have been established as divisions of the Magistrates’ Court in Heidelberg and Ballarat. The Family Violence Court Division (FVCD) deals with a variety of matters related to family violence including interim and final intervention orders, counselling orders, civil proceedings in respect to damages for personal injury, victims of crime compensation and breaches of intervention orders. In addition, the Specialist Family Violence Service (SFVS) commenced in late 2005 and now operates at Melbourne and a few suburban Magistrates’ Courts, with staff and resources specifically catering to family violence cases. Of course, other Magistrates’ Courts in Victoria still continue to hear family violence cases.
All magistrates have been given powers in family violence cases regarding exclusion orders and children (as explained above) and regarding existing orders under the FLA. In addition, magistrates sitting in the FVCD have the power to direct defendants to attend “behavioural change” counselling. If a defendant is assessed as eligible to participate in such counselling and is ordered to attend but refuses, a fine of up to 10 penalty units can be imposed.
In most cases of family violence, an intervention order is the most accessible and most effective form of protective order. Some magistrates and legal practitioners encourage parties to enter into an undertaking, which is a legal promise to the court where the respondent promises to refrain from acting in a particular manner towards the affected family member. These undertakings are not enforceable and if breached, require further proceedings, usually to reinstate the original application for an intervention order. It is important to check with parties on both sides if an intervention order is required or if an undertaking will suffice.
The Victorian Law Reform Commission published a detailed review of family violence laws in March 2006. A number of recommendations were made. Many of those recommendations appear in the FVPA and subsequent amendments and many other recommendations are being progressed within Victoria Police and through various government departments. The Victorian Sentencing Advisory Council is examining sentencing practices for the contravention of family violence intervention orders and safety notices.
Family violence intervention orders (state law) :: Last updated: Sun Jun 30th 2013