Domestic and family violence is a terrible fact of Australian life, affecting many thousands of people every year.
The type of harmful behaviour that can be encompassed by this sort of violence includes physical intimidation of one person by another, including hitting or pushing them, as well as sexual, emotional, psychological and even financial abuse.
Controlling or coercing behaviour – restricting who another person communicates with, humiliating and belittling them, and determining how, when and where they spend money are all species of domestic and family violence.
Family members to whom this type of order can apply include spouses, siblings, children, parents, grandparents, step-children, relatives and others who are in intimate or family-type relationships.
The effects of this sort of behaviour, particularly where children are present and witness it, can harm the family members involved for the rest of their lives.
One way police and courts try to both pre-empt and prevent these forms of abuse is through protective orders, which go by different titles in Australia’s states and territories. These legally enforceable court orders seek to provide a person, their family and their property with protection from a person who is, or they believe will, commit acts of violence towards them.
In Victoria, these orders are known as Family Violence Intervention Orders (FVIOs). South Australia also refers to them as Intervention Orders (IOs).
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In other jurisdictions of Australia, protective orders are referred to as:
- A Domestic Violence Order (DVO) in Queensland
- an Apprehended Violence Order (AVO) in NSW;
- a Family Violence Restraining Order (FVRO) in Western Australia;
- a Family Violence Order (FVO) or Police Family Violence Order (PVFO) in Tasmania;
- a Domestic Violence Protection Order (DVO) in the ACT, and;
- a Domestic Violence Protection Order (DVO) in the Northern Territory.
How do Family Violence Intervention Orders work?
Applying for intervention orders can be an intimidating idea for those seeking protection from threatened or actual violence by a partner, ex-partner or family member, particularly if they believe they need to come to court.
In most states and territories of Australia, protective orders such as FVIOs can be applied online. The form can also usually be accessed at a police station, or a person seeking protection can contact the local Magistrates Court for guidance on how to make an application for a protective order.
In Victoria, the person applying for an FVIO is called the applicant or affected person, while the person the application is sought against is called the respondent. This terminology is the same or similar across Australia’s states and territories.
In making an application for an intervention order, the affected person must provide detailed information on the respondent, including their name and address.
They must also furnish details about how the respondent has behaved, including descriptions about the words or actions from which the applicant is claiming protection, and why they believe the behaviour may occur again.
The details of children in the relationship, including their names and birthdates, and whether there are other family members who need protection from the respondent, should also be included.
Once the application is made, an interim order may be made and the respondent informed and issued with a summons to appear at a hearing. In some cases of demonstrated violence, a court may issue a warrant for the arrest of the respondent.
The affected person must attend the hearing for the intervention order. If the respondent doesn’t attend the hearing, an intervention order can be made in their absence.
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If a magistrate finds that:
- The respondent has committed family violence against the applicant;
- the respondent’s behaviour is likely to happen again;
- the applicant fears for their safety
then a final or interim FVIO may be made against the respondent.
If an FVIO is made, both parties will receive a copy of the order.
The respondent can consent to the order without making admission to the allegations of violence or other behaviour restricted by the order, and can also contest the making of an FVIO. In this case, a contested hearing takes place in which both parties present evidence and may call witnesses to support their case.
An intervention order can also be applied for on behalf of a child, or even be applied for by a child if fears for their safety are held.
It should be noted that police can also apply for an intervention order, even where the person who will be protected does not want them to. When police apply for such an order to protect the safety of the person and their children, the respondent will be told it is a police decision.
How does an FVIO work once the order is made?
The order will set out conditions that the respondent must strictly observe. Failure to do so is a criminal offence and the police may arrest and charge the respondent.
Some protective orders include standard conditions but the application can specify certain other conditions in seeking protection from the respondent.
Most commonly, conditions in an FVIO or other protective order will prevent the respondent from:
- Approaching or remaining within a certain distance of the protected person;
- attempt to locate, follow or surveil the protected person;
- contact or communicate with the protected person by any means;
- damage the protected person’s property, including things that are jointly owned by the protected person and respondent, such as pets;
- send an email or post on social media or other electronic communication any material about the protected person;
- get another person to do anything the respondent must not do under the order.
The applicant can also request their personal property, or that of a family member, be returned to them, and that jointly owned property the protected person relies on upon (such as a car) be returned.
A respondent may also be provided with an opportunity to retrieve personal property from a home of the respondent, most likely under police supervision.
The respondent may also be required to hand in any firearms or weapons to the police and have any weapons licences cancelled.
The FVIO is in effect until it expires or is cancelled by a magistrate.
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What happens if there are also parenting orders in place?
In making an intervention order a magistrate can change, vary or suspend an existing Federal Circuit and Family Court of Australia (FCFCOA) parenting order if there is a risk of domestic or family violence.
The court must carefully consider any inconsistency between the making of intervention orders and parenting orders, balanced against the risk of family violence.
If intervention orders are in place when parents make an application for parenting orders, the FCFCOA may make orders that override the protection orders. This will usually be done to allow handover of children or so that the applicant and the respondent can attend family dispute resolution, counselling or a court proceeding.
A family dispute resolution practitioner may advise that compulsory mediation between parents prior to applying to the court for parenting orders, required by Australia’s Family Law Act, is not appropriate in the particular family situation.
Alternatively, if there is a protection order in place, an exception may be made to its conditions to allow mediation between the applicant and respondent to take place about the living arrangements for the children.
If an intervention order is in place, the FCFCOA must be told about the order when parenting orders are applied for because its existence may affect the substance of the orders the Court makes about a child spending time with a parent or another person.
The importance of good legal advice
The need for an FVIO or other protection orders can make an already complicated family situation even more complex.
Particularly where a couple or ex-couple have parenting orders in place or are seeking orders about where the children from the relationship live and how they are raised, the introduction of protective orders restricting one parent from interacting with the other can have a terrible effect on the children.
Mediations Australia offers expert legal practitioners to advise people who find themselves in this difficult circumstance.
We will help you navigate the situation where the safety and security of family members are paramount, as reflected in intervention orders, but parenting orders provide for the respondent parent to still have access to the children.
Contact us today for guidance on your situation.