Family Violence Intervention Orders

Family Violence have you been charged with offences in relation to breaching a family violence intervention order? Or are you responding to or making an application at court?

Either way you need a criminal law firm with experience handling these types of matters. Dribbin & Brown are criminal lawyers who routinely deal with domestic violence (family violence) and intervention order applications, and we have specialist lawyers ready to help you.

Dribbin & Brown have offices at Dandenong, Ringwood, Frankston, Geelong, Moorabbin and in the Melbourne CBD in close proximity to the local Courts. We appear regularly at these Courts representing clients in relation to family violence intervention order applications.

The charges under the Family Violence Protection Act 2008 are:

  • Section 123 – Contravention of Family Violence Intervention Order;
  • Section 123A – Contravention of Order Intending to Cause Harm or Fear for Safety; and
  • Section 125A – Persistent Contravention of Notices and Orders.

 

The Family Violence Protection Act 2008

Whether you are the respondent or applicant of a family violence intervention order, it is important to engage lawyers who have a firm understanding of the rules in relation to these types of hearings.

How Do I Get a Final Family Violence Order?

As per section 74 of the Family Violence Protection Act, in order to grant a family violence protection order the Magistrate must be satisfied of two things on the balance of probabilities:

  • That the respondent has committed family violence; and
  • That the respondent is likely to do so again.

How do I get an interim Family Violence Order?

Section 53 of the Family Violence Protection Act allows a person to apply to the Court for an interim order pending the outcome of any final finding of fact.

The Court must be satisfied on the balance of probabilities that the interim order is necessary to:

  • Ensure the safety of the affected family member;
  • Preserve the property of the affected family member; or
  • Protect a child who has been subject to family violence committed by the respondent.

If the police have issued a Family Violence Safety Notice in relation to the aggrieved family member things are a bit different. Then the Court need only be satisfied per section 53(1)(c) that on the balance of probabilities there are no circumstances that would justify discontinuing the protection of the person until a final decision about the application has been made.

Before making an interim order per section 53(1B) the court must consider whether there are any children who have been exposed to family violence by the respondent. If so, they may make the child a protected person under the order if satisfied that the child’s need for protection is substantially the same as the affected family member’s.

There is a problem with applicants obtaining interim orders. If the matter cannot be negotiated when it first comes to Court then it is adjourned for a contested hearing. If an interim order is put in place during that interim period, it means that the respondent is subject to the terms and conditions of a full order for the interim period.

This scenario occurs because the Court cannot accommodate a contested hearing on short notice, and it is grossly unfair. Often the contested hearing will not be heard within 3 months of the first mention date of the order.

This can be very frustrating for respondents, particularly if there are children on the order or there is an exclusion order in relation to the marital home.

When will there be a Family Violence Safety Notice?

A police member will apply to a superior if satisfied that:

  • The respondent is an adult;
  • The respondent is not cognitively impaired;
  • There are no family Court orders in place that would be inconsistent with the proposed safety notice;
  • There is no existing Family Violence order in place;
  • The order is necessary to:
    • Ensure the safety of the affected family member;
    •  Preserve any property of the affected family member; or
    • Protect a child who has been subjected to family violence by the respondent; and
  • The application is made outside of business hours.

 The problem with family violence safety notices is that once they are in place, a full interim order will usually follow. See above for an explanation on how this can unfairly impact respondents prior to there being a full hearing in Court.

Police powers in relation to family violence

Police have a number of powers under the Family Violence Protection Act. You can see sections 13 to 23 of the Act for further details.

Police can enter without warrant, detain suspects, arrest suspects and make a number of requests of people they reasonable suspect of committing family violence.

To determine whether police have breached the law in relation how they have treated you, it is important to get advice from an experienced lawyer.

What can be considered family violence?

Section 5 of the Act indicates that family violence can be behaviour by a person (the respondent) towards a family member that:

  • Is physically or sexually abusive;
  • Is emotionally or psychologically abusive;
  • Is economically abusive;
  • Is threatening;
  • Is coercive;
  • In any way shows the respondent to be engaging in dominant or controlling behaviour towards the family member and causes the family member to feel fear for their safety or the safety of another family member; or
  • Exposes a child to any of the above behaviour, although the child may be a secondary party.

The act is clear that conduct that may not be criminal in nature can still constitute family violence.

Running a Contested Family Violence Intervention Order Hearing

There a number of aspects that differ to usual Court procedure when running a contested family violence matter as a contested hearing. These can be found in the Family Violence Protection Act, as follows:

  • Section 62 – children involved in proceedings are entitled to have their own representative;
  • Section 67 – child witnesses can only be called to give evidence with the leave of the Court;
  • Section 65 – different evidentiary rules are to apply when adducing evidence. The section makes it clear that the Court may inform itself in any way it thinks fit despite any rules of evidence to the contrary;
  • Section 66 – the Court may admit sworn statements;
  • Section 70 – a respondent is not permitted to cross-examine a protected person if they are not legally represented; and
  • Section 77 – the Court may, on its own initiative, impose protection of a child if the Court deems it necessary.

Possible Conditions of final orders

The Court can impose the following conditions in relation to Family Violence Protection Intervention Orders:

  • Section 81 – the respondent can be directed not to commit family violence, can be excluded from the residence, or excluded from approaching or contacting the affected family member;
  • Section 82 – the respondent can be excluded from the residence, subject to exclusions orders in relation to children under s83. The Court may ask for a report from DHS under s84;
  • Section 86 – the Court may make directions in relation to personal property;
  • Section 87 – the Family Court takes precedence over the Magistrates’ Court order subject to any inconsistency;
  • Section 92 – the Court can include a clause to allow child contact; and
  • Section 95 – the Court can make orders in relation to a respondent’s firearms licence.

How to vary or extend an existing Family Violence Protection Order

Section 100 of the Family Violence Protection Act allows the Court to vary or revoke an existing order.

Section 109 says that if the respondent seeks to vary an order, the Court can only grant leave if the Court is satisfied that:

  • There has been a change in circumstances since the family violence order was put in place; and
  • The change may justify the variation of the order.

Under section 106 the Court can extend the operation of an existing order when it is satisfied on the balance of probabilities that the respondent is likely to commit family violence against the protected person.