Dribbin & Brown Criminal Lawyers regularly represent clients both as applicants and respondents in relation to intervention order applications.
We have offices in Dandenong, Ringwood, Frankston, Geelong, Moorabbin and in the Melbourne CBD, all in close proximity to the local courts, so we have a great deal of experience appearing at the courts in these areas.
Intervention orders are known by many different names, including Apprehended Violence Orders (AVO’s), Family Violence Orders, Restraining Orders, Domestic Violence Orders, Personal Safety Intervention Orders and Intervention Violence Orders (IVO’s).
They are all Court orders which essentially have the same effect – to preclude one person from engaging in certain activities towards another person.
To obtain an intervention order an applicant must attend the local Magistrates’ court and make an application in person. The applicant can be assisted by a lawyer or choose to represent themselves. To become immediately protected by an intervention order an applicant must apply to the court for an interim intervention order. They must satisfy the Magistrate that an interim order should be put in place to:
It is often far easier to obtain an interim order where there has been police involvement.
If the police have attended a property and taken out a Family Safety Notice then a reverse onus applies. The court must be satisfied that there are no circumstances to justify the imposition of an interim order against the respondent (the person responding to the application).
In practice, it is very difficult for a respondent to satisfy a court in the above requirement. Advice from a solicitor with experience handling intervention orders will be important to a successful outcome.
Family or domestic violence is defined in the Family Violence Protection Act as ‘behaviour towards a family member that is physically, sexually, psychologically, emotionally or economically abusive and causes that family member to feel fear for their safety or fear for the safety of another family member.’
You can use the above definition as an indication, however to know exactly whether family violence has occurred you should always seek advice from a solicitor who has experience in this area of the law.
See here for a direct reference to the legislation regarding family violence.
The offending behaviour does not need to be directly focused on a particular family member for them to become an aggrieved family member on an order. e.g. a child can simply witness offending behaviour towards another and be considered to require protection.
In fact, a child or an affected family member can just provide assistance to a family member who has been the recipient of family violence or assist cleaning up after a family member has intentionally damaged another family members property have a protection order imposed.
The nature of the offending conduct does not have to be as serious as it would need to be in order to support a criminal prosecution, but it must fit into one of the above categories (i.e. pose a threat to a family member’s safety, property or children) in order for there to be any basis for an application for an intervention order.
The purpose of the legislation is to protect those who cannot protect themselves by way of an intervention or family violence order.
The person named in the order is prevented from approaching or stalking the aggrieved person, or from committing family violence against the aggrieved person. The orders give police the power to immediately arrest someone who does not comply with the above conditions.
Unfortunately it would seem that in many cases domestic violence orders and personal safety intervention orders are not being used in the spirit envisaged by the legislators.
While these intervention orders are commonly used to protect men and women who have been the victims of persistent and relentless domestic violence, in some cases people apply for these orders to fast-track a citizenship application or they are used to secure property rights.
Section 68R(1) of the Family Law Act (Cth) 1975 prescribes that Magistrate Courts have the power to suspend or reinstate a parenting order to the extent that it requires or authorises a person to spend time with a child.
Section 68P allows the Family Court or Federal Magistrates’ Court to make an order or further order which is inconsistent with a family violence order, i.e. it can rescind the order to the extent necessary to rectify any inconsistency. The problem with this is that interim family violence orders can be implemented much faster than a family court order, which can take several weeks.
Under section 60CC(3)(k) of the Family Law Act a final finding of fact or a finding by consent made at an intervention order hearing allows relevant inferences to be drawn in determining what is in the best interests of the child who is the subject of a custody battle. This makes it advantageous for the other party to seek an intervention order prior to settling family court proceedings.
Section 82 of the Family Violence Protection Act states that parties can have other parties excluded from the matrimonial home. If an interim order is granted then this could remain the status quo for 6 – 12 months until a final finding of fact is made in relation to the order.
Read the following articles to see how these orders are being abused.
If you think that a respondent is using an intervention order application to obtain an order unfairly then you should contact Dribbin & Brown lawyers to assess the merits of your case.
We know that people are abusing these orders and although they are civil in nature, they can have serious repercussions down the track. Allowing a person to obtain an order against you when they shouldn’t opens you up to criminal prosecution.
You should consider that if someone is prepared to lie under oath either in open court or by way of affidavit then you should expect that they will later be prepared to lie to police to have charges laid against you for breaching an intervention order.
Sometimes it is better to spend money fighting one unjust order rather than spend thousands and thousands of dollars later fighting a number of different false claims in relation to intervention order breaches.
Our advice is that no respondent should ever take these orders lightly. Although it is easy to simply not turn up to court, that is always a mistake.
We handle hundreds of intervention order and domestic violence cases each year, acting for both the applicant and the respondent. Our lawyers in Melbourne have years of experience representing clients in relation to intervention order applications.
We routinely act for people who have breached intervention orders and are facing police charges. We also act for people who have orders and cannot get police to charge the other party for breaching them.
If your matter relates to family violence or stalking we can help you. If you have been served with papers to attend Court or you would like to initiate an intervention order application call our office and allow one of our domestic violence lawyers to assist you today.
If you ignore a Court date and an order is put in place in your absence, it is very difficult to reverse the decision. Further, you can then potentially be susceptible to abuse by the other party in relation to breaching the order.
So many clients would have been far better off defending the original intervention order rather than the multitude of criminal charges that occurred as a result of the alleged breaches of the order.
The client married a woman from overseas. They had been together for 6 months and were planning to get married. Read More