OUR EXPERTISE AND APPROACH
We are experienced in dealing with family violence and allegations of family violence.
We represent clients in State Magistrates’ Courts where intervention orders are sought. We also provide sensitive and practical advice regarding parenting and property disputes in the Family Law Courts where family violence is an issue.
Hidden First Field
What is family violence?
In Victoria, the Family Violence Protection Act 2008 (Vic) (“FVPA”) governs family violence and intervention orders. Family violence includes behavior by a person towards a family member that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive or behavior that in any other way controls or dominates the family member and causes them to feel fear for their safety or wellbeing, or for the safety or wellbeing of another person.
Family violence also includes behaviour by a person that causes a child to hear, witness or be exposed to the effects of family violence.
The behavior does not have to be a criminal offence to be family violence.
The Family Law Act 1975 (Cth) (“FLA”) governs family violence in family law proceedings in the Commonwealth Courts. Family violence means violent, threatening behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.
Physical or sexual abuse
This can include assault or causing personal injury to a family member, sexually assaulting a family member or engaging in sexually coercive behaviour or threatening such behaviour.
Emotional or psychological abuse
Emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person.
This can include repeated derogatory taunts, preventing a person from making or keeping connections with the person’s family, friends or culture, and threatening to commit suicide or self-harm with the intention of intimidating a family member or threatening the death or injury of another person.
Economic abuse is behaviour that is coercive, deceptive and unreasonably controls another person without that person’s consent in a way that undermines that person’s economic or financial autonomy or withholds or threatening to withhold financial support necessary for reasonable living expenses.
This can include preventing a person from having access to joint financial assets for the purposes of meeting normal household expenses, disposing of property owned by a person or owned jointly with a person against the person’s wishes and without lawful excuse, and coercing a person to relinquish control over assets and income.
Coercion or control, fear for safety
Any behaviour that coerces or controls or causes the family member to be fearful for their safety or wellbeing or for the safety or wellbeing of another person is family violence.
Examples include intentionally harming or threatening to harm an animal, damaging or threatening to damage property, preventing the family member from keeping connections with friends or family or their liberty or stalking.
A child hearing, witnessing or otherwise exposed to any of the above
A child can be exposed to family violence by overhearing threats, seeing or hearing an assault, providing or comforting assistance to a family member who has been physically abused by another family member, or cleaning up a site after a family member has intentionally damaged another family member’s property.
Family Violence Orders
What is family violence?
In Victoria, family violence includes behavior by a person towards a family member that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive or behavior that in any other way controls or dominates the family member and causes them to feel fear for their safety or wellbeing, or for the safety or wellbeing of another person. This can include intentionally harming or threatening to harm an animal, damaging or threatening to damage property or preventing the family member from keeping connections with friends or family. The behavior does not have to be a criminal offence to be family violence.
Family violence also includes behaviour by a person that causes a child to hear or witness or be exposed to the effects of family violence.
Who can apply for a family violence intervention order?
An affected family member (the victim of family violence) or a police officer can apply for a family violence intervention order. The term “family member” includes parents, children, relatives (by birth or by marriage) or anyone who is treated like a member of a family. If the affected family member is an adult, any other person can apply for the order with the written consent of the affected family member. If the affected family member is a child, the parent of the child or any other person with the written consent of a parent of the child can apply for the family violence intervention order.
The police have the power to issue family violence safety notices to provide short term protection to an affected family member until an intervention order application is heard by the Magistrates’ Court.
Applications for family violence intervention orders are usually made at the Magistrates Court. In some circumstances, the applications can be made at the Children’s Court of Victoria.
What orders can the Court make?
Family violence intervention orders can be made on a final or an interim basis. These orders can prevent a person from engaging in certain conduct, such as preventing them from committing family violence or damaging property. They can also restrain persons from approaching the affected person or attending their home.
The Court can make interim family violence intervention orders to ensure the safety of the affected family member, to preserve any property of the affected family member or to protect a child who has been exposed to family violence. These orders can be made in the absence of the respondent (the person against whom the order is made).
The Court can also make final family violence intervention orders if it is satisfied that, on the balance of probabilities, the respondent committed family violence against the affected family member and is likely to continue to do so or do so again.
What are the penalties for breaching a family violence intervention order?
The penalties for breaching a family violence intervention order include imprisonment and fines (or both). The police have the power to arrest persons who breach family violence intervention orders.
Relevance to family law proceedings
Family violence intervention orders are relevant to family law proceedings. The Federal Circuit and Family Court of Australia and the Federal Magistrates Court of Australia must be informed about any family violence orders which apply to a child or a member of the child’s family.
The Family Court and the Federal Court of Australia have has the power to make orders which are inconsistent with family violence orders. For example, the Court could allow a respondent to a family violence order to see the affected family member facilitate the changeover of a child. The Court will only make these orders if it is in the best interests of the child to do so.
The Magistrates’ Court has the power to suspend, vary or discharge parenting orders when making a family violence intervention order if certain conditions are met.
For more information go to: https://www.fcfcoa.gov.au/fl/fv/overview