Federal Circuit and Family An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. of Australia
From the 1 September 2021, the Federal Circuit Court and the Family Court A document that sets out what a person wants to happen to their money and other property after they die. merge into the new Federal Circuit Court and Family Court of Australia. For more information, see ‘Changes to family courts’ in this chapter.
Who can obtain a family violence intervention order?
Under the FVP A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation., any family member experiencing violence may obtain an A court order that prohibits a person harming or harassing another person. See also family violence intervention order;personal safety intervention order..
‘Family member’ is defined in the FVP Act (s 8) and includes a current or former spouse, a domestic partner (see the expanded definition below), a person who has/has had an intimate personal relationship with the (1) A defendant in a civil case that has been appealed to a higher court. (2) A person against whom some originating motion has been issued by an applicant. See also appellant. (whether or not it is sexual in nature; this includes boyfriend–girlfriend relationships, same-sex relationships, parties involved in a brief sexual relationship, and even close platonic friends), a parent, a child, a relative (including immediate and extended family) and any other person whom the relevant person views as being like a family member in certain prescribed circumstances (s 8(3)).
‘Domestic partner’ is an adult person to whom the person seeking protection is not married but is in a relationship with as a couple, irrespective of their genders and whether or not they are living together (s 9). Paid carers and co-tenants are excluded. ‘Relative’ also covers a wide range of people (s 10).
What is a family violence intervention order?
An intervention order is a fast, inexpensive and easily accessible remedy for a family member who needs immediate short-term, and long-term, protection.
Applications for intervention orders are usually heard in the Magistrates’ Court, unless the sole applicant or sole respondent is under 18 years old.
When the sole applicant or respondent is under age, the application is usually heard in the Children’s Court, which has the same powers as the Magistrates’ Court.
Section 81 of the FVP Act sets out some of the conditions that may be included in a A court order made to protect a family member from violence, intimidation or harassment by restraining a person from harmful or annoying conduct towards that family member. See also intervention order..
An intervention order may:
- prohibit the respondent from committing family violence against the protected person;
- exclude the respondent from the protected person’s residence (called an ‘exclusion condition’);
- restrict a person’s access to any premises and/or a specified area;
- prohibit the respondent from contacting or communicating with the protected person by any means;
- direct the use of specific Any property that is not freehold land (real property).;
- prohibit publishing – on the internet, by email or other electronic communication – any Relevant or important. For example, material evidence is something that helps to prove an argument in a criminal case. about the protected person;
- prohibit the respondent from causing another person to engage in conduct prohibited by the order;
- require the respondent to attend counselling;
- revoke or suspend any licence/permit to carry or use firearms.
If the court decides to make an intervention order, the court must consider whether to include an exclusion condition (s 82). The FVP Act prescribes the circumstances the court must examine before making an order. There are cross-references to residential The agreement between a landlord and a tenant for the rental of a property. laws and to housing provided by the Victorian Government Department of Families, Fairness and Housing (DFFH).
In addition, there are extra circumstances for the court to consider if the respondent to such an exclusion condition is a child (s 83). Also, the FVP Act sets out procedures for orders relating to personal property (ss 86–88), family law (ss 89–93) and counselling (ss 129, 130).
An intervention order may be:
- interim (for a short period); or
- final (for a longer prescribed period, or for an indefinite period).
An intervention order may also contain exceptions, such as ‘do anything that is permitted by a Family Law Act order, a child An order made by a court in response to a protection application. This may involve removal of the child from the family., or a written agreement about child arrangements’.
Once an intervention order is made, the affected family member is known as the ‘protected person’.
Interim intervention orders
Under the FVP Act (s 53), an interim intervention order can be made by a magistrate who is satisfied on the More likely than not. The plaintiff in a civil case (a non-criminal case) must prove that what they are arguing is more likely to be true than false. This is called the standard of proof. See also beyond reasonable doubt. that an A temporary court order that stays in place only until the court can make a final decision on the issue at a full hearing. is necessary (pending a final decision about the application):
- to ensure the safety of the affected family member; or
- to preserve the property of the affected family member; or
- to protect a child who has been subjected to family violence committed by the respondent.
Final intervention orders
Under the FVP Act (s 74), a final intervention order can be made by a magistrate who is satisfied on the balance of probabilities that the respondent has committed family violence against the affected family member and is likely to do so again. This is a more onerous test as the court must be satisfied, according to the civil standard, that there has been family violence in the past and the respondent is likely to commit family violence again.
How do I get a family violence intervention order?
An application for a family violence intervention order needs to be filed with the The officer in charge of the administrative section of a court, which is known as the registry. See also prothonotary. at a Magistrates’ Court. There is a list of Magistrates’ Courts at www.mcv.vic.gov.au. There is no filing fee.
An affected family member can apply for an intervention order in person, or by lodging a written application, or through another person (e.g. a friend, refuge worker or A legal practitioner (lawyer) who sees clients and opens files to deal with their legal matters but usually does not appear in court. See also barrister.), or through the police.
One application can be used to cover a parent and their children against the same respondent.
Sometimes an A document that presents written evidence in a court case, setting out what a witness says is true. The witness must swear that it is true and correct in front of an authorised official. This can be done on oath or by affirmation. The person in whose name the document is sworn is called the deponent. (i.e. a sworn statement) or a written statement with further details of the Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it. behaviour (known as ‘further and better particulars’) is filed too.
Police applying for intervention orders
Police can apply for an intervention order on behalf of a family member experiencing violence – even without the To agree to something being done, to approve an action or arrangement. See also informed consent. of the affected family member.
Police are increasingly more active and interventionist in family violence cases. Police now act as applicants (i.e. the person seeking the intervention order) in over 77 per cent of all cases.
One of the benefits of a police officer acting as an applicant is that police officers can apply for interim intervention orders by telephone outside normal court hours. This is useful in emergency situations, at night, during weekends, or in isolated country areas where the nearest courthouse is far away.
Police also have ‘holding powers’ where a police officer can apprehend and detain an adult for six hours (or for 10 hours if extended by a court) in order to apply for and/or serve an intervention order.
In addition, police officers of the rank of sergeant and above have the power to issue a ‘family violence safety notice’ to ensure the safety of a family member, or to preserve property, or to protect a child. The police cannot issue a notice against a person under 18 years old. A safety notice can be issued at any time and lasts up to the first ‘mention’ date, which is the first date on which the application for an intervention order is listed before the court. The first The first day on which a criminal matter is brought before a Magistrates’ Court. On that day, a person tells the court whether they will plead guilty or not guilty to a criminal charge. A case can only be finalised on the mention day if it is a plea of guilty. should be no later than 14 days after the safety notice was served on the respondent. A safety notice has the same effect as an interim intervention order and is a very useful tool for providing immediate protection.
Breaching a safety notice or an intervention order is a criminal A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious)..
Affected family members under 18 years old applying for intervention orders
If the affected family member is under 18 years old, the application for an intervention order can be made on their behalf by:
- a parent, or
- any person with the parent’s written consent, or
- a police officer.
However, the child may apply for the order themselves, if they are aged 14–17 years, and with leave of the court.
In order to grant leave, the court must be satisfied that the child understands the nature and consequences of an intervention order. Such applications are usually heard in the Children’s Court instead of the Magistrates’ Court.
If the affected family member wants to go to the police, it is best to seek legal advice first to discuss all the options, especially since there may be a risk of an application for a child protection order being taken out by the DFFH.
Before making a final intervention order, a court must consider whether there are any children who are family members of the affected family member, or of the respondent, who have been subjected to family violence committed by the respondent. In such a case, the court may grant an intervention order on its own initiative to include the child (s 77 FVP Act).
What happens after a family violence intervention order application has been filed?
Usually, when the police or a family member experiencing family violence files an application for an intervention order, the Magistrates’ Court registrar issues a A formal document issued by a court which says someone must appear in court on the date stated in the document. See also service; writ. that is served personally on the respondent before the The time and place at which a court or tribunal hears the parties argue their case and makes a decision. date. Formal delivery of legal documents to a person to tell them there are court proceedings against them which they must defend, or to make sure a witness in a case knows when they have to go to court to give evidence. is effected by police officers working close to where the respondent lives.
However, if an applicant alleges that there has been an assault or assault has been threatened – and the registrar is satisfied that the family member’s personal safety or property would be seriously threatened if the respondent is not apprehended and brought into Lawful control over a person which prevents them leaving. A person under arrest is in police custody and is not free to go. A person in prison is serving a custodial sentence that keeps them confined to the prison grounds. – a A document issued by a court directing an officer to take certain action. May be a warrant of apprehension, directing that a person be arrested and brought before a court; a warrant of commitment, directing that a person be arrested and imprisoned; a warrant of distress, directing that a person’s goods be seized to satisfy a debt; or a warrant of seizure and sale of real estate. can be issued for the apprehension of the respondent. The applicant must then seek an intervention order in the same way.
It is state-wide police policy that proceedings brought by police should be initiated by an application and warrant where there are concerns for the safety of a family member or where criminal offences are involved. This policy is part of the Victoria Police’s Guidelines setting out proper practice in an industry or occupation. For example, the franchising code of practice sets out rules for businesses operating under a franchise. Codes can be voluntary or statutory (required by legislation)..
Does the respondent have to attend court?
Intervention orders can be made ex parte (i.e. without the respondent being present). In urgent cases, an interim intervention order can be made ex parte if the court is satisfied that it is necessary to ensure the safety of the affected family member or to preserve their property. A final intervention order can be made ex parte if the respondent cannot be located or chooses not to attend once served.
Intervention order court process and legal aid
In intervention order proceedings in court, Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. is mostly given in person by the applicant, the respondent and any relevant witnesses.
The court may require the applicant and the respondent to provide ‘further and better particulars’ about the facts and allegations that will be put forward in support of, or in response to, an application for an intervention order. The court may also require the names of any witnesses.
The FVP Act (ss 70–72) has unique provisions about cross-examining parties who are not represented by lawyers. If the applicant and/or the respondent does not have legal representation, then the Magistrates’ Court must order Victoria Legal Aid to The first step in agreeing to make a legally binding agreement. An offer must be accepted before there can be a legally enforceable contract. For example, a person can offer to sell their car for $5000 and a buyer can accept the offer and pay that purchase price. funding for separate lawyers to appear for the applicant and/or the respondent just for the purposes of An opposing party’s questioning of a witness in a court case. Questioning of your own side’s witness is called examination in chief.. If the applicant and/or the respondent rejects the offer of legal representation, then certain cross-examination is not permitted.
It is recommended that you seek legal advice and have legal representation for intervention order court proceedings, especially when the police are not involved.
Family violence intervention orders and Family Law Act orders
An intervention order on its own does not necessarily stop or prevent contact with any children. If a court makes an intervention order, it has the power to revive, vary, (1) To fulfil an obligation or be released from an obligation. For example, a debtor can discharge a debt by paying it; a prisoner can be discharged (released) from jail. or suspend orders made about any relevant children under the FL Act. The court has the power to amend FL Act orders to make them consistent with the intervention order. Also, even if there are no FL Act orders in relation to a child, the court can include conditions in the intervention order about contact with that child.
Note that if an application for an intervention order has been filed with the Magistrates’ Court, the same applicant cannot apply for an A court order that directs a person to do, or not to do, something. For example, a court can order a developer not to demolish a historic building. An injunction may be interim (operative until further order) or perpetual (continuing indefinitely). in a family law court (Family Court or Federal Circuit Court) for the same violent or abusive circumstances, unless the earlier proceedings have lapsed or been discontinued.
Intervention orders and parenting orders
If a A court order for the care of children when their separated or divorced parents cannot reach agreement on a parenting plan. The order covers matters such as where the child will live, contact with the parents and financial support. already exists about, for example, spending time with the children, the Magistrates’ Court has the power to vary the existing parenting order so it does not conflict with an intervention order (e.g. where the children are to be collected or dropped-off). This power exists under section 68R of the FL Act and can be exercised at the same time as making an intervention order under the FVP Act.
If a parenting order for spending time with children is inconsistent with an intervention order, then the parenting order prevails and the intervention order is Not valid; with no legal effect and not enforceable at law. For example a legal provision or document may be invalid because it is not in proper legal form. to the extent of the inconsistency (s 68Q FL Act). If there is an inconsistency, it is a good idea to vary the parenting order to avoid problems. Obtaining legal advice is recommended.
Duration, rehearing and appeals of family violence intervention orders
An intervention order may remain in force indefinitely or for any specified period. Most commonly, intervention orders last for one to two years. If the respondent is a child, the final intervention order must not remain in force for more than 12 months unless there are exceptional circumstances (ss 97–99 FVP Act).
In certain limited cases – such as where service has not been effected or in ‘exceptional circumstances’ – a respondent to a final order may seek a rehearing (s 122 FVP Act).
However, if either A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. seeks to challenge any aspect of a final intervention order, both the applicant and the respondent can The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision.; such appeals are usually heard in the County Court. If the appeal involves a question of law rather than the facts and merits of a particular case, then it will be heard in the Supreme Court. The procedure for appeals is set out in the FVP Act.
Breaching family violence intervention orders
A power of To seize a person suspected of breaking the law and hold them in custody. Police have powers to arrest and charge suspected offenders and bring them before a court. without warrant automatically attaches to an intervention order for the duration of the order. This authorises state police officers to arrest and detain the respondent if they believe on reasonable grounds that the respondent has contravened the order.
Unlike an injunction under the FL Act, a contravention or breach of an intervention order is a criminal offence for which the police should prosecute. If the court is satisfied under the criminal The level of proof required level to prove a case in court. In criminal cases the prosecution must prove its case beyond reasonable doubt. In civil (non-criminal) cases, the plaintiff must prove that their argument is more likely to be true than false. This is known as proof on the balance of probabilities. (i.e. ‘beyond a reasonable doubt’) that there has been a breach, it may impose a maximum fine of 240 penalty units (pu) (see ‘A note about penalty units’ at the start of this book) and/or imprisonment for two years.
‘Persistent’ contraventions (as defined in s 125A FVP Act) attract higher maximum penalties, namely up to 600 pu and/or imprisonment for five years. As in other summary crime matters, other prescribed penalties are available (see Chapter 1.3: Sentencing in the Magistrates’ Court).
Changing family violence intervention orders
Applications can be made to vary, revoke or extend family violence intervention orders (see ss 108–113 FVP Act). It is important to note that intervention orders cannot be automatically extended once the period has expired. Applications seeking intervention order extensions must be filed at a Magistrates’ Court before the order expires. If the intervention order has expired, then a new application needs to be filed.
Family violence intervention orders and firearms
When a final family violence intervention order is granted, the respondent becomes a ‘prohibited person’ under section 3 of the Firearms Act 1996 (Vic) (‘Firearms Act’) and section 3 of the Control of Weapons Act 1990 (Vic).
Where a final family violence intervention order is imposed, a respondent’s firearm licence is automatically suspended. Police serve the family violence intervention order on the respondent and may seize any firearms, ammunition and licence documents.
The respondent has three months to apply to the Magistrates’ Court under the Firearms Act (s 189) to have their status changed to a ‘non-prohibited person’. Otherwise, the respondent remains a prohibited person for the duration of the final order, plus a further five years.
The protected family member who took out the family violence intervention order is informed of the section 189 application and is interviewed by Victoria Police to find out if and why they object to the A person who commits a crime. See also offender. retaining or obtaining a firearms licence. Any evidence relating to previous violence involving firearms or related threats needs to be provided to the police. In many cases the police will oppose the application on behalf of the protected person. If not, the protected person can oppose the application with the assistance of a lawyer.
Anti-publication: ‘Name and shame’
Generally, it is an offence to publish, or cause to be published, details about intervention order proceedings that may identify the parties or witnesses or locality involved (ss 166–168 FVP Act).
One exception is if the court reasonably considers it is in the public interest and it is just in the circumstances to allow publication. Another exception to this anti-publication provision is where you can ‘name and shame’ offenders if they To break a legal rule or fail to carry out a legal obligation such as a court order. an intervention order or safety notice. There are strict requirements for relying on these exceptions and it is essential to seek legal advice before doing so (see Chapter 2.4: Legal services that can help).
National recognition of family violence intervention orders
The National Domestic Violence Order Scheme was introduced on 25 November 2017 and covers all Australian states and territories, and New Zealand.
This means that all intervention orders issued in Victoria from 25 November 2017 are automatically recognised as ‘national domestic violence orders’ and are enforceable anywhere in Australia. Victorian intervention orders no longer need to be registered in other states and territories to be enforceable outside Victoria.
Breaching or contravening a national domestic violence order attracts the penalties of the state or territory in which the order was breached (e.g. if a Victorian intervention order is breached in New South Wales, it is enforceable under New South Wales law, and not under the FVP Act).
New Zealand protection orders are recognised and are enforceable in Victoria, and vice versa.