Are you a victim of family violence?
If you are a victim of family violence, the violence may be relevant to parenting orders you seek in a Family Law Court, or to intervention orders which you seek or the police seek on your behalf in the Magistrates’ Court. Some of the questions you may have are answered below.
In the Magistrates’ Courts – Intervention orders
1. What is family violence?
For the purpose of an intervention order, family violence is behavior which is:
- Physically or sexually abusive; or
- Emotionally or psychologically abusive; or
- Economically abusive; or
- Threatening; or
- Coercive; or
- Controlling or dominating the family member causing that family member to feel fear for the safety or wellbeing of that family member or another person; or
- If a child can hear, see, or experience the effects of the above actions, that in itself is deemed to be family violence.
Some examples of family violence include:
- An assault on a family member;
- A sexual assault or other sexually abusive behaviour towards a family member;
- Stalking a family member;
- Repeated derogatory taunts to a family member;
- Intentionally damaging or destroying property owned by a family member;
- Intentionally causing death or injury to an animal;
- Unreasonably denying a family member the financial autonomy that he or she would otherwise have had, for example not having access to money to buy food;
- Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or their child, at a time when the family member is entirely or predominantly dependent on the person for financial support;
- Preventing the family member from making or keeping connections with their family, friends or culture; or
- Unlawfully depriving the family member, or any member of the family member’s family, of their liberty
2. Who is a family member?
An individual’s family member, in the context of family violence, is:
- A person who is, or has been, the individual’s spouse or domestic partner;
- A person who has, or has had, an intimate relationship with the individual;
- A person who is, or has been, a relative of the individual;
- A person who normally or regularly resides with the individual, or has previously resided with the individual on a normal or regular basis; or
- A child of an affected family member who is currently or was previously in an intimate personal relationship with the individual.
3. If you are a victim of family violence, what options are available to you?
If you are a victim of family violence, you can seek a family violence intervention order from the Magistrates’ Court. This type of order helps to protect you (an affected family member) from a family member (the respondent) who is committing family violence. The respondent may be your partner or former partner but the definition is wider than this. When a Magistrate makes a family violence intervention order they have the authority to include a variety of different conditions. These conditions are ‘rules’ that the respondent must follow.
A family violence intervention order is a civil order made by a Magistrate. The Magistrate must be satisfied about the evidence ‘on the balance of probabilities’. However, if a respondent to a family violence intervention order breaches that order, they may be charged with committing a criminal offence and the evidentiary test to establish a breach is higher.
4. What if you have a child?
The Magistrates’ Court can make an interim family violence intervention order to include your child in circumstances where:
- The court has made an interim family violence intervention order in relation to you; and
- The court is satisfied, on the balance of probabilities, that the respondent has committed family violence against your child.
If the court is satisfied that your child’s need for protection is substantially the same as that of you, the court must:
- List your child as a protected person on the interim family violence intervention order; or
- Make a separate interim order including your child as a protected person.
If the court determines that your child’s safety is not at risk, the court is not required to include your child in the interim order or make a separate interim order.
5. What is a Family Violence Safety Notice?
Victoria Police has the power to issue a Family Violence Safety Notice in circumstances where a victim needs immediate protection. The Notice will contain various conditions that the police deem necessary to protect the victim from immediate harm. Once the Notice has been issued, it operates immediately and until the first court date.
A Family Violence Safety Notice is effectively an application by Victoria Police for a family violence intervention order. The application is made on your behalf against the respondent. The respondent will receive a summons to attend court on the first date that the matter is called at court. At this point, if the matter is contested the Magistrate can make an interim intervention order or dismiss the application. If an interim intervention order is made, the contested hearing will be several months later. If the respondent consents to the order a final intervention order can be made.
6. What happens if someone does not follow a Family Violence Safety Notice?
The respondent may be charged with a criminal offence for breaching a condition in the Family Violence Safety Notice. For example, if there is a condition requiring that the respondent leaves the home but they return, the protected person (which could be you) can contact Victoria Police who then has the authority to remove the respondent from the home and charge them with a criminal offence.
7. What are the different types of Family Violence Intervention Orders?
There are two types of family violence intervention orders. These are:
- Interim family violence intervention orders; and
- Final intervention orders.
Family violence orders made in other States or Territories of Australia are recognised in Victoria. There are discussed below in Question 15.
8. What is an interim Family Violence Intervention Order?
An interim family violence intervention order is an order that gives an affected family member with urgent, short-term protection from family violence. An interim order protects you on an interim basis it gives the court time to determine whether to make a final intervention order.
9. When can the court make an interim Family Violence Intervention Order?
The court can make an interim family violence intervention order if it is satisfied of one of the following:
- The court finds it is necessary to make an order pending a final decision to ensure your safety, preserve your property or protect a child; or
- You and the respondent consent to the making of an interim order, or the respondent does not oppose the making of the interim order; or
- Victoria Police issued a family violence safety notice and there is no compelling reason to justify removing the protection until the court makes a final decision.
The court can make an interim family violence intervention order in circumstances where:
- The affected family member is in Victoria even if the violence occurred outside of Victoria; or
- The affected family member is outside Victoria, but the alleged family violence occurred in Victoria.
10. What is a final Family Violence Intervention Order?
The court can make a final family violence intervention order if the court is satisfied on the balance of probabilities that:
- The respondent committed family violence; and
- The respondent is likely to continue to commit family violence or will commit family violence again.
11. How long does an interim Intervention Order last?
An interim intervention order ceases to be effective if one of the following occurs:
- The final order is served on the respondent. If the interim order is extended to cover the period until the respondent is served. If the court does not order this additional period, the interim order ends when the court makes the final order;
- The court refuses to make a final intervention order;
- The court revokes the interim order; or
- The application for a final or interim family violence intervention order is withdrawn.
12. What Intervention Order conditions can a Magistrate impose?
The court can include any condition that it deems necessary or desirable in the circumstances.
Examples of conditions are:
- Forbidding the respondent from committing family violence against the protected person (which could be you and/or your child);
- Excluding the respondent from approaching the protected person’s home;
- Requiring the respondent to return personal property, or alternatively allowing the respondent to attend the home to collect their personal property in the company of a police officer or another specified person;
- Forbidding the respondent from contacting the protected person in any manner, unless in the presence of a police officer or specified person;
- Requiring the respondent to stay a specified distance away from the protected person or a specified place such as, their home and place of work;
- Forbidding the respondent from having another person engage in conduct prohibited by the order.
13. What if my partner has a firearm?
When making an interim order, a Magistrate may include a condition suspending your partner’s firearm licence, weapon approval or your partner’s application for a weapons exemption.
When making a final order, a Magistrate may include a condition cancelling your partner’s firearm licence or weapon approval, or revoking your partner’s application for a weapons exemption.
14. What is consent without admission?
It is quite common that a respondent will consent to the intervention order being made “without admissions”. This means that the respondent consents to the making of the order but the court records that the respondent does not admit that the allegations made in the application are true. The respondent may agree to this to avoid the costs and time involved in a contested hearing.
15. I have a Domestic Violence Order from outside of Victoria, what is it?
A Domestic Violence Order (DVO) can be made in Victoria or outside of Victoria. Orders made outside of Victoria will be recognised if:
- Interstate DVO
- An interstate DVO is considered to be the equivalent order to a Victorian family violence intervention order or a Family Violence Safety Notice but it is made in another State or Territory of Australia.
- A foreign Order can be registered in Australia if:
- It is a New Zealand Domestic Violence Order; or
- It is an order made in an overseas jurisdiction which contains provisions that substantially correspond to a Victorian family violence intervention order.
16 How long does an Intervention Order last if it is a final order?
The magistrate can make it to last for a few months or for a few years, but 12 months is very common. You will be asked how long you want it to last but the Magistrate will make the decision.
17 What can I expect at an Intervention Order hearing?
During the COVID-19 pandemic very few cases are being heard and you may only have short mention hearings probably via Webex.
Many Intervention Order cases are resolved with consent orders or undertakings before reaching a final hearing. If your case goes to a final hearing then you will need to give evidence and you will be cross-examined. You should speak clearly and answer any questions you are asked. It is important to be polite and respectful even if you disagree with what is being said about you.
If your case is being heard in a court room:
- stay away from the Respondent
- bow to the Magistrate when you enter the court room
- call the Magistrate “Your Honour”
- stand when the Magistrate speaks to you
18 How can I remove an Intervention Order in Victoria? How do I extend an Intervention Order in Victoria?
You may be able to vary or revoke the Intervention Order by completing a form which is on the Magistrates’ court website https://www.mcv.vic.gov.au/intervention-orders/family-violence-intervention-orders/changing-intervention-order-fvio. If you want to extend it then you need to apply at least 4 weeks before it expires.
The process has changed during the COVID-19 pandemic and an affidavit will also be required as well as an application. The documents will served on the Respondent (and the Police if they took out the order), and there will be a hearing.
In rare circumstances you may be able to appeal to the County Court from a decision to make an Intervention Order, but you must do this within 28 days. You should seek legal advice first.
In the Family Law Courts – parenting orders
1. What is family violence?
Family violence is broadly defined under Family Law Act 1975 (Cth) (‘the Act’) to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.
Examples of family violence are:
- An assault on a family member;
- A sexual assault or other sexually abusive behaviour towards a family member;
- Stalking a family member;
- Repeated derogatory taunts to a family member;
- Intentionally damaging or destroying property owned by a family member;
- Intentionally causing death or injury to an animal;
- Unreasonably denying a family member the financial autonomy that he or she would otherwise have had, for example not having access to money to buy food;
- Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or their child, at a time when the family member is entirely or predominantly dependent on the person for financial support;
- Preventing the family member from making or keeping connections with their family, friends or culture; or
- Unlawfully depriving the family member, or any member of the family member’s family, of their liberty.
2. Will the court know about the violence I have experienced?
When you are seeking orders in relation to children, you are required to attach copies of any current intervention orders. If you do not have an intervention order and you are filing an affidavit the family violence is likely to be relevant to the parenting orders which the court considers to be appropriate and, in rare instances, may be relevant to the property orders which the court makes.
All parties seeking parenting orders must file a Notice of Risk. A Notice of Risk is where you identify any risks towards the children in parenting proceedings.
The court provides a copy of the Notice of Risk to the child protection authorities who will provide the court with a responding statement which identifies any risk which has been reported or investigated by the child protection authorities, and any findings made.
3. How does family violence affect the conduct of my family law proceedings?
The court is obliged to ensure, so far as possible, the safety of the parties (including you) and children.
Where allegations of family violence have been made, the court will likely adopt a conservative approach on an interim basis with a focus on obtaining all information relevant to determining the issues in dispute and ensuring safety of all parties and children.
Family Consultant
Before making orders relating to the care of your child, the court may order that parties attend upon a Family Consultant or a private family report writer. A Family Consultant is a psychologist or social worker who works for and reports to the Family Court and assists you and the other party in resolving disputes, advising the courts about programmes which the court can refer you and the other party to attend, such as anger management and drug rehabilitation programs.
After meeting you, the other party and the children, the Family Consultant produces a Report. There are two kinds of reports which may be requested by the court. The first is what known to be a “section 11F report”. A section 11F report is a small ‘family report’ which can usually be done quite quickly. The second is a ‘Family Report’. A Family Report is the Family Consultant’s assessment of the overarching issues within your case. The Family Report is provided to the judge dealing with your matter and assists them in deciding what parenting orders are reasonable.
If the Court orders that you attend an appointment or a program (such as a parenting after separation program or parenting education program) and you do not attend, the Family Consultant must inform the Court of your absence.
Depending on the financial circumstances of the parties, the court may order that you both engage a private family report writer to prepare a Family Report.
Independent Children’s Lawyer
In some parenting matters, the court may appoint an Independent Children’s Lawyer if it determines that it is necessary in the circumstances, or if an application is made requesting that an Independent Children’s Lawyer be appointed. An Independent Children’s Lawyer acts on behalf of your child to represent and promote their best interests. The Independent Children’s Lawyer considers the views of your child but does not act on instructions from your child, you or the other party. Part of the role of an Independent Children’s Lawyer is to assist the court by ensuring that all relevant information is available.
Common circumstances which the court may make an Order appointing an ICL include:
- Allegations of abuse or neglect towards your child have been made;
- You and the other party are unable to communicate regarding the care and welfare of your children due to high levels of conflict;
- Your children are under the age of 18 but mature enough to express their view on matters which affect them;
- There is either proven or alleged family violence against the other party;
- Either you, the other party or the child has serious mental health issues; or
- Difficult and complex issues arise in your family law proceedings.
4. How does family violence affect the outcome of my parenting proceedings?
When the court is making Orders in relation to the care of your child, the court’s paramount consideration must be what is in the best interests of your child.
In determining what is in the best interests of your child, the court must consider all the factors identified in s 60CC of the Family Law Act. This includes the two primary considerations:
- The benefit to your child of having a meaningful relationship with their parents; and
- The need to protect your child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The determination of what is in the best interest of your child requires the court to balance the importance of your child having a meaningful relationship with both of their parents against the need to protect your child from harm, or unacceptable risk of harm.
5. Will the violent parent get to spend time with their child?
It depends.
In considering the factors found in section 60CC of the Family Law Act, the court may make an Order which provides for a child to spend with a parent subject to specific conditions which are intended to safeguard the child from harm.
Specific conditions in Orders may include:
- Requiring a parent to complete certain programs (post separation parenting education, anger management and/or behaviour change);
- Requiring a parent to undertake a hair follicle (or urine) drug test;
- Requiring that a parent’s time with the child be supervised. Supervised time may be done in the presence of a trusted family member or friend or by engaging an independent, professional supervisor; and/or
- For the children’s time with a parent to occur at a Children’s Contact Centre. A Children’s Contact Centre is an independent child-focussed place which allows parents to spend time with their child whilst being supervised by an employee of the centre. The supervisor spends the whole time with the parent whilst they care for the child and monitors them to ensure the safety of the child. After every session the supervisor takes notes which may then be produced to the court.
A Family Law Court may make an Order which is inconsistent with the family violence intervention order that you and the children have against the other party. This occurs if the court orders that the other parent spend time with your children even though you (and the children) are listed as a protected person in the family violence intervention order against you. The most common ways that the court takes into account the family violence whilst still allowing the other parent to spend time with the children are:
- To ensure changeovers take place in a safe way, such as at school, or take-away store or otherwise away from your home. This means that you and the children are not, or are less likely to be exposed to family violence.
- Restricting the time that the other parent spends with the children. A parent who has committed family violence is less likely to have an equal shared time arrangement so that the children are not exposed to that parent’s violence and views about family violence.
If the court makes an Order or injunction that allows the other party to spend time with your children and is inconsistent with the intervention order against them, the court must:
- Specify that the other party spending time with the children is inconsistent with an existing family violence order; and
- Provide a detailed explanation as to how the contact is to take place. This includes imposing conditions;
- Explain or arrange for someone else to explain the Order or Injunction to you as a protected person on the intervention order; and
- State within the court’s explanation the purpose of the Order or injunction, the obligations created by the injunction, the consequences that may follow if you do not comply with the Order or injunction, the court’s reason for making the Order or granting the injunction which is inconsistent with the intervention order, and the circumstances where you or the other party may apply for variation or removal of the Order or injunction.
Although the court may order for the other party to spend time with your children and contact them in various ways, if the other party acts outside the scope of the Family Law Order or injunction, then depending on your intervention order, they may breach the intervention order and therefore commit a criminal offence.
