WHAT IS A FAMILY LAW INTERVENTION ORDER?

A court order known as a family law intervention order is made to safeguard a person from familial violence. The respondent is required by the order to carry out or refrain from carrying out the stated action. A family violence intervention order is referred to in the Act as either a final order or an interim order. A final order is one that has been affirmed by the County Court or Supreme Court. A final order is one that has been issued under Sections 74, 76, 77, 77A, or 77B and may have been modified or extended under Sections 100, 119(2)(c), or 173(2).

It is a legally binding document with the purpose of protecting the individual, their children, and their property.

To prevent the respondent from committing family violence against the protected person, the order contains conditions.

Depending on the circumstances, the law may compel the respondent to:

• discontinue the behaviour;
• refrain from contacting or speaking with the protected person; or arrange for someone else to do it on their behalf.
• refrain from contacting to or being close to the protected person.

The magistrate has additional powers, including the ability to revoke or suspend the respondent’s firearms permits.

You can apply for a family violence intervention order without appearing in court (FVIO). For an FVIO to be heard at all court sites, you can submit an online application.

The applicant, also known as the afflicted person, is the individual who requests an FVIO. The applicant’s intended target is referred to as the respondent.

You will be required to fill out the following fields on the form:

• The respondent’s name and address
• Details regarding the respondent’s actions, including what happened and your reasoning for believing it would happen again.
• the conditions you want in the order; the names and dates of birth of your children and other family members who need to be protected, as well as their relationship to the responder.
• The family violence registrar will contact you when the court accepts your application to go over the following stages.

Going to the FVIO appointment

Bring the paper application for a family violence intervention order to your appointment if you have already completed it.

The application will need to be read over and signed by you as a representation that the information is accurate and truthful. A registrar will provide you with a copy of the paperwork if your application is granted. Applications and summonses, interim orders, and warrant applications are examples of documents.

INFORMING THE RESPONDENT

The police will serve a copy of the application on the respondent if an application and summons have been issued. To find out if the respondent has been notified, contact the Magistrates’ Court where the application was filed. The police will let you know if an interim order was issued after serving it. The responder could be taken into custody if a warrant has been issued.

GOING TO COURT

Attending the FVIO hearing in court is crucial. You should schedule a whole day in court. An order may be made in the respondent’s absence if they have been served but fail to appear in court after being summoned.

If the following conditions are met, the magistrate will recite the terms of the order in court if an FVIO is issued:

• the respondent has victimised you in a family violence incident;
• the respondent’s behaviour is likely to occur again; and
• you fear for your safety, a magistrate may issue a final or interim FVIO.

After the hearing, a registrar will give you a copy of the FVIO. You can appeal the magistrate’s ruling to the County Court of Victoria if you disagree with it.

WHAT HAPPENS NEXT?

The defendant may cooperate with an FVIO but object to the information provided in the application. This is interpreted as consent without acknowledging the accusations.

The creation of an FVIO may also be disputed by the respondent. You will have to appear in court for a contested hearing if this occurs. A magistrate will hear testimony from witnesses during the hearing and make a decision about whether to grant an FVIO. Make plans for any witnesses to attend the hearing if you have any.

The police may file charges against the responder if an FVIO is made and they disobey the directive. We refer to this as a breach. If this happens, you need to call the police immediately.

CONDITIONS

Conditions will be included with the order. Conditions are guidelines that limit how the respondent acts. The requirements are there to safeguard the applicant and the other family members named in the order.

You can select from a list of conditions on the application form. These are a few instances.

Respondent is not allowed to:

• attempt to track down the protected person or keep them under surveillance;
• publish information about the protected person online or through email, social media, or other electronic communication;
• approach or remain within a certain distance of the protected person;
• damage the protected person’s property, including items that are jointly owned by the protected person and respondent, such as pets;
• obtain a third party to perform whatever tasks the responder is forbidden from performing by the order.

The applicant may also ask the magistrate to direct the respondent to:

• hand over any firearms or weapons to law enforcement;
• suspend or revoke any firearms authority, weapons approval, or weapons exemption.
• return the protected person’s or a family member’s personal property;
• return jointly owned property that permits the protected person’s normal daily activities to continue with little interruption.

The magistrate ultimately decides what requirements should be included in the order. It is quite serious to violate the rules. You should alert the police if the responder violates the terms.

INTERIM INTERVENTION ORDERS

Interim intervention orders are made to offer an affected family member immediate, temporary protection. Without providing the respondent with adequate notice or an opportunity for a complete hearing, the orders may be imposed ex parte. In order to safeguard the impacted family member until the court may decide whether to issue a final intervention order, this is the goal.

Under the Act, there are various issues that both interim orders and final orders have in common. These subjects are often covered in more detail in the sections on final orders.

The court may issue an interim intervention order if one or more of the following conditions are met: the parties agree to the making of the interim order or do not object to its issuance; a family violence safety notice has been issued; and there are no circumstances that would allow protection to be discontinued until the court makes a final decision on the application FVPA s 53).

The court may issue an interim order even if the following conditions are met: the affected family member was outside Victoria when the alleged family violence occurred, provided that the alleged family violence occurred in Victoria; or some or all of the alleged family violence occurred outside Victoria (FVPA s 53(3)).

Whether or not the court has previously made or refused to issue an interim order, it may do so at any time following the filing of an application for a family violence intervention order and before the final judgement about the application is reached (FVPA s 53(4)).

Conditions of interim intervention orders

An interim intervention order may have whatever stipulations the court deems appropriate or necessary given the situation. The ability of the court to place restrictions on an interim order closely resembles that of the court to impose restrictions on a final decision. The main distinction is that although a court may revoke these authorizations when it issues a final decision, it may only suspend a guns authority, weapons permission, or weapons exemption on an interim order.

When the affected family member does not agree to the application, there is no restriction on the terms that can be used for an interim order, unlike final orders (FVPA s75). In theory, a court may, against the desires of the impacted family member, place exclusion or non-approach terms on an interim order if the court thought that this was appropriate given the facts of the case.

When police personnel seek an order without the affected family member’s approval, this could be appropriate. Despite the preamble’s paragraph (d), which commands the court to respect victims’ opinions, the court may decide that it is appropriate to exclude the respondent from a shared house temporarily. It could be vital to divide the parties in this way to stop more bloodshed. Additionally, it can enable child protection professionals to evaluate the safety of any children involved in the relationship or enable the impacted family member to seek legal counsel. The Act forbids the court from imposing a continuing exclusion condition, although the pertinent policy considerations do not hold true in the interim.

Duration of interim intervention orders

An interim order expires when one of the following occurs:

• the respondent receives notice of the final order, if the court orders that the interim order continue until service of the final order;
• the court makes a final order, if the court does not order that the interim order continue until service of the final order;
• the court refuses to make a final order;
• the court revokes the interim order; or
• the intervention order application is withdrawn (FVPAs 60).

The court is not required to say how long an interim order will last. This is because interim orders are intended to offer temporary protection while the court decides whether to issue a final order.

Respondents may get frustrated by interim orders. Although interim orders are required to guarantee the safety of the protected person, they are typically imposed on the basis of scant evidence. They severely restrict the respondent’s freedom until the case is ultimately decided. Because intervention order cases are typically complex, courts should make an effort to resolve them quickly. According to FVPA s. 59, a court that issues an interim order must list the case for consideration of a final judgement as soon as is reasonably possible.

The court must set a return date even though interim orders are in effect until a final ruling is made. This return date must provide enough time for the order to be delivered and for the respondent to consult counsel. The following time frames might offer some basic direction on a good return date:

• If the parties are separated and there are no time constraints on hearing from the respondent, two weeks from the date of the interim order;
• if the respondent must be served in a different State or Territory, three weeks from the date of the interim order; and
• if the court imposes an exclusion condition or other significant limit on the respondent’s liberty.

Evidence required for making interim intervention orders

If the following conditions are met, the court may issue an interim intervention order:

• the parties agree or do not object to the order’s creation;
• the application is supported by oral testimony or an affidavit;
• or the application is made by the issuance of a certified family violence safety notification (FVPAs 55).

While certified family violence safety notices will typically be enough evidence for the making of an interim order, the court must first consider whether it is reasonably practicable to obtain oral or affidavit evidence before deciding whether to refuse to admit or limit the use of the family violence safety notice under s65(3).

The applicant may also call other pertinent witnesses, such as a police officer who responded to a report of family violence, a relative or acquaintance who saw family violence, or a doctor who treated the injured family member as a result of a family violence occurrence.

Evidence from the respondent and cross-examination of the applicant

The respondent’s testimony and the applicant’s evidence are not needed to be considered by the court prior to granting an interim order.

A judicial officer may consider affidavit and oral evidence during a contested hearing for an interim order without allowing cross-examination, deny the respondent the opportunity to testify, and allow the applicant and respondent to make submissions regarding whether the court should issue the order and the appropriate conditions.

Zion-Shalom v Magistrates’ Court of Victoria & Ors [2009] VSC 477

When he issued temporary intervention orders, Harper J took procedural fairness into account. The respondent attended the hearing in court after receiving a family violence safety notice and being served with it. The magistrate gave the respondent’s counsel a briefing period of a few minutes, and she also gave counsel time to present arguments to the judge. The respondent’s prepared evidence was described in these submissions. The court subsequently disallowed the respondent from offering the suggested testimony. According to Harper J, this procedure gave the magistrate enough information to decide that there were no justifiable reasons to stop using the family violence safety notice’s protective measures. At [13, His Honour provided:

“Since it is clear that the legislation contemplates a magistrate reaching the required state of satisfaction on an ex-parte application for an interim order, and without even hearing any evidence from the alleged victim, there is an obvious difficulty in arguing that the magistrate failed to accord the plaintiff procedural fairness when she indicated that she did not have time to allow him to give evidence or, through his counsel, to cross-examine the alleged victim.”

Hickman v Smith & Ors [2003] VSC 126

Although the interim order procedure restricts the respondent’s right to procedural fairness, it is nonetheless critical to strike a balance between the Act’s goals, the affected family member’s right to be free from violence, and the respondent’s right to a fair trial. In this case, Ashley J issued at [8] that:

“Something should be said, I think, about the jurisdiction to grant an interim intervention order. Whether such an order is made in the presence or absence of the defendant, it is an order which has far-reaching consequences. Of course the safety of the complainant is a crucial consideration. But it must be remembered that if such an order is made the consequences for a defendant are serious indeed. His or her conduct is inhibited; and any failure to abide by the order constitutes an offence which may lead to the imposition of substantial penalties. Moreover, the order is made having heard only one side of the story.”

These remarks were unmistakably obiter in the Hickman v. Smith case, which was resolved under the CFVA. The FVPA places a major emphasis on protecting individuals from familial violence, as shown in its preamble and objectives sections. In Zion-Shalom v. Magistrates’ Court of Victoria, Harper J acknowledged that this may jeopardise some components of procedural fairness. Despite these opposing concerns, Ashley J.’s comments highlight a crucial component that goes into weighing the interests of justice while considering whether to give an interim injunction.