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What is family violence?

Section 5 of the Family Violence Protection Act 2008 (Vic) defines ‘family violence’ as: 

  • Behaviour by a person towards a family member that:
    • Is physically, sexually, emotionally, psychologically or economically abusive
    • Is threatening or coercive
    • In any way controls or dominates the family member and causes that family member to feel fear for their safety or wellbeing or that of another person
  • Behaviour by a person that causes a child to hear or see or otherwise be exposed to the effects of behaviour referred to above

Family violence also includes:

  • 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 their 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

Behaviour may constitute family violence even if the behaviour would not constitute a criminal offence.

Family violence intervention orders

The Victorian Family Violence Protection Act 2008 allows a family member to apply to the Magistrates’ Court for an intervention order against another family member where there has been family violence. A family violence intervention order restricts some behaviour of people, for example, what they can do, where they can go. A family violence intervention order may prohibit or restrict a person (the respondent) from:

  • Committing family violence against the protected person
  • Behaving offensively towards the protected person
  • Approaching (or going near) a protected person
  • Attending premises where a protected person lives, works or frequents
  • Being at a particular location
  • Following the protected person
  • Contacting or communicating with the protected person
  • Damaging property owned by the protected person
  • Arranging for another person to do what the respondent is not allowed to do as stated in the order

An intervention order may also:

  • Direct the respondent to participate in prescribed counselling
  • Suspend or cancel any firearms licence, permit or authority or weapons approval or exemption held by the respondent

Who is a family member?

The term ‘family member’ means:

  • A person who is or has been the affected family member’s spouse or domestic partner
  • A person who has or has had an intimate personal relationship with the affected family member
  • A person who is or has been a relative of the affected family member
  • A child who normally or regularly lives with the affected family member or has previously lived with the affected family member in a normal way
  • A child of a person who has or has had an intimate personal relationship with the affected family member
  • A family member also includes any other person whom the affected family member regards or regarded as being ‘like’ a family member. For example a relationship between a person with a disability and the person’s carer may over time have come to be like the type of relationship that would exist between family members

Who can apply for a family violence intervention order?

An application for an intervention order may be made to the court by:

  • A member of the police force
  • The affected family member
  • If the affected family member is an adult, any other person with the written consent of the affected family member
  • If the affected family member is a child:
    • A parent of the child
    • Any other person with the written consent of a parent of the child or with permission from the court
    • The affected family member with permission from the court if they are of or above the age of 14
  • If the affected family member has a guardian:
    • The guardian
    • Any other person with permission from the court

Duration of family violence intervention orders

There are two types of family violence intervention orders:

  1. An interim intervention order – which lasts for a short time
  2. A final intervention order – which lasts longer

A magistrate may make an interim family violence intervention order if satisfied that it is necessary pending a final decision about the application to:

  • Ensure the safety of the affected family member
  • Preserve any property of the affected family member
  • Protect a child who has been subjected to family violence committed by the respondent

An interim family violence intervention order is a temporary order made to give the affected family member protection until the application for the intervention order can be listed before the court (usually two weeks). This also allows the court to have the respondent served with the application, usually by the police. A magistrate may make a final family violence intervention order if satisfied that the respondent has committed family violence against the affected family member and is likely to do so again.

Appealing against a family violence intervention order

A party to an intervention order proceeding may appeal to the County Court of Victoria against:

  • The making of an intervention order
  • The conditions of an intervention order
  • The refusal to make an intervention order
  • The refusal to impose certain conditions in an intervention order

An appeal against an order of the President of the Children’s Court of Victoria must be made to the Supreme Court of Victoria. An appeal against a magistrates’ order must be lodged at the Magistrates’ Court within 30 days of the order being made.

Extending, varying or revoking a family violence intervention order

The court may make an order to:

  • Extend the duration of an intervention order (this application must be made before the original order expires)
  • Vary the conditions of an intervention order
  • Cancel an intervention order

Extending, varying or cancelling a family violence intervention order

The court may make an order to:

  • Extend the duration of an intervention order (this application must be made before the original order expires)
  • Vary the conditions of an intervention order
  • Cancel an intervention order

An application to extend, vary or cancel an intervention order may be made by any party to a family violence intervention order proceeding. All parties to the original application must be served with a copy of the application (including Victoria Police if the original application was made by a police officer). If a respondent seeks to vary or cancel a family violence intervention order they must first be given permission by the court to lodge these types of applications. A court would grant permission only if it is satisfied there has been a change in circumstances since the family violence intervention order was made and the change may justify a variation or revocation of the order.

Breach of a family violence intervention order

An application for a family violence intervention order is a civil matter between the parties, unlike a criminal matter which is between the State of Victoria and an individual. If a family violence intervention order is breached (that is, the conditions of an intervention order are not complied with), the respondent may be charged by the police with a criminal offence for breaching the intervention order. The penalties for breaching an intervention order may be:

  • Fine up to $24,000
  • Imprisonment for up to two years
  • Fine up to $24,000 and imprisonment for up to two years

Family violence intervention orders and the Family Law Courts

Sometimes the Family Court or Federal Magistrates’ Court makes an order or an injunction that is inconsistent with the state or territory order. Under the federal Family Law Act 1975, family violence orders can allow parties to come into contact with each other only for:

  • Delivering or collecting a child who is spending time with a parent or other person (as provided by the Family Law Act)
  • Enabling parties to attend family counselling, family dispute resolution, a family consultant meeting or other court events during family law proceedings

Child abuse allegations

People involved in disputes about the future arrangements for their children after relationship breakdown are required to make a genuine effort to resolve the matter by family dispute resolution. You do not need to attend family dispute resolution if:

  • There being abuse or a risk of child abuse if there was a delay in applying for an order
  • Family violence or a risk of family violence by one of the parties

A family law court must take ‘prompt action’ in cases where a person applies for parenting orders and files a Form 4 (Notice of Child Abuse or Family Violence) alleging ‘as a consideration that is relevant to whether the court should grant or refuse the application’ that there has been abuse of the child by one of the parties or risk of such abuse if there were to be delay in applying for the order or that there has been or is a risk of family violence by one of the parties. In considering the application, a court must consider what interim or procedural orders (if any) should be made to have evidence provided about the allegations and to protect the child or any of the parties to the proceedings and make orders as the court considers appropriate.

Assault

If there is sufficient evidence that one family member has assaulted another family member, the police can charge that family member with assault. The standard of proof in criminal cases is high. The assault must be proved beyond all reasonable doubt. If the charge of assault is proven beyond all reasonable doubt, the family member may be subject to a criminal conviction and sentencing.

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Please note the above information is not intended to, and does not encompass all aspects of the law on this subject matter. Further professional advice should be sought before action is taken based on matters outlined on this page.

- March 2018

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