What is Family Violence?
Family violence is broadly defined in the Family Violence Protection Act (Vic) and it covers:
Behaviour by a person towards a family member if that behaviour:
- is physically or sexually abusive; or
- is emotionally or psychologically abusive; or
- is economically abusive; or
- is threatening; or
- is coercive; or
- in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person;
or, behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to above.
Examples of Family Violence
The Family Violence Protection Act (Vic) provides the following examples of the types of behaviours which would fall under the definition of Family Violence:
- assaulting or causing personal injury to a family member or threatening to do so;
- sexually assaulting a family member or engaging in another form of sexually coercive behaviour or threatening to engage in such behaviour;
- intentionally damaging a family member's property, or threatening to do so;
- unlawfully depriving a family member of the family member's liberty, or threatening to do so;
- causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the family member to whom the behaviour is directed so as to control, dominate or coerce the family member;
- using coercion, threats, physical abuse or emotional or psychological abuse to cause or attempt to cause a person to enter into a marriage;
- using coercion, threats, physical abuse or emotional or psychological abuse to demand or receive dowry, either before or after a marriage;
- a child overhearing threats of physical abuse by one family member towards another family member;
- a child seeing or hearing an assault of a family member by another family member;
- a child comforting or providing assistance to a family member who has been physically abused by another family member;
- a child cleaning up a site after a family member has intentionally damaged another family member's property;
- a child being present when police officers attend an incident involving physical abuse of a family member by another family member.
How to obtain a Family Violence Intervention Order
An application for a Family Violence Intervention Order (FVIO) (also often referred to as an Intervention Order or an IVO) may be made:
- during business hours at a Magistrates’ Court by a person affected, or by the Police on that person’s behalf; or
- after business hours by police, either by issuing a family violence safety notice or through the Magistrates' Court's after-hours service.
If you are applying for a Family Violence Intervention Order yourself, without assistance from Police or your Lawyer, you should contact your local Magistrates’ Court to make an appointment and the Court staff will assist you with the required documentation to initiate the Court Proceedings for an Intervention Order.
If you are the Victim of Family Violence
If you are currently experiencing Family Violence and are in fear, do not hesitate. Telephone the Police on 000 now! The Police should attend quickly and deal with the situation by applying for a Magistrates’ Court Family Violence Intervention Order on your behalf. If you are not sure whether you have grounds for an Intervention Order, please make an appointment to discuss your particular situation with one of our lawyers at Melbourne Family Lawyers and we can advise you as to the best thing to do.
If you are alleged to have committed Family Violence or breached an Intervention Order
The Police will personally serve you with a copy of the Application for a Family Violence Intervention Order and Summons to appear in Court. In many cases, the Magistrate may have already made an Interim Family Violence Intervention Order against you and the Police will serve you with a copy of that Interim Order as well. An Interim Family Violence Intervention Order is valid even if you were not at Court and did not receive any notice that there was any Application before the Court. The Interim Order will remain in place until the Magistrate decides to make some other order.
A person alleged to have committed family violence is not obliged to make a statement to the Police. But sometimes, it may assist if you give the Police a truthful version of events if they are investigating a situation prior to deciding whether to take action.
What happens when the Police get involved?
The Police are primarily concerned about the safety of affected persons (and their children) and may apply for a Family Violence Intervention Order even if the affected person does not want them to. A Magistrates’ Court hearing will be scheduled (at short notice, if required) to decide if an Intervention Order should be made. Whilst the Police will represent the affected family members during any Magistrates’ Court hearings, affected family members will usually be required attend Court and to give evidence.
In more serious matters, the police may obtain a warrant to arrest you. If you are arrested, the police may release you on bail pending a court hearing. Breaching the terms of an Intervention Order is a criminal offence and if you are convicted it will appear on your criminal record. This may have an impact on employment or immigration visas.
What types of Orders can a Magistrate make in relation to Family Violence Intervention Order Applications?
- Interim Intervention Order
This order is a temporary one which can be made by a Magistrate on an urgent basis at a summary hearing, and often, without the Respondent even knowing about it. An Interim Intervention Order is valid until such time as the Magistrate makes another order.
- Further and Better Particulars
A Respondent is entitled to know the facts relied upon by the Applicant in support of his/her Application for a Family Violence Intervention Order. A Magistrate can order an Applicant to provide to the Respondent (and to the Court) written Further and Better Particulars of the relevant incidents referred to in the Application.
- Application Struck Out
A Magistrate can strike out an Application if the Applicant fails to attend court without explanation on a listed hearing date, or if the Magistrate decides that, on the balance of probabilities, the Respondent has not committed family violence against the affected family member or if there is insufficient evidence.
- Final Intervention Order
A Final Intervention Order may be made by a Magistrate upon the Magistrate hearing evidence at a hearing. It is a legal requirement for the magistrate to be satisfied that the Respondent has used family violence against the affected family member and is likely to do so again. The Magistrate will decide how long a Final Intervention Order will be in force in order to protect the affected family member. The usual minimum time is at least one year but the duration will depend on the individual circumstances of each case.
A Final Intervention Order can also be made with the consent of all parties involved and this avoids the parties having to attend a full hearing. Sometimes, a Respondent will consent to an Intervention Order “without admissions” in order to avoid the stress, uncertainty and cost involved with a defended hearing.
On some occasions, an undertaking may be an acceptable solution. If the Applicant and the Respondent agree, then then the Respondent can give an undertaking to the Court that he/she will not commit family violence and, on that basis, the Intervention Order Court Proceedings will be discontinued. Undertakings may be appropriate when dealing with once-off situations which are unlikely to happen again.
It is important to note that an Undertaking is not a court order and it cannot be enforced by Police. However, should there be a recurrence of Family Violence, a fresh Application for an Intervention Order could be made to the Magistrates’ Court.
Do I need a Lawyer in a Family Violence Intervention Order case?
It will depend on the circumstances of your particular case and whether you are the Affected Family Member or the Respondent. As an Intervention Order may affect you in relation to other legal issues, such as Family Law Court parenting disputes or property disputes, it is wise to obtain specific advice in relation to your own personal situation before it is too late.
For further Specialist Family Law advice, call Melbourne Family Lawyers today for an appointment on +613 9670 9677.
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