Being accused of perpetrating family violence is a very serious allegation. This article will outline how to defend against false allegations of family violence.
What is ‘Family Violence’?
Firstly, it is important to know what is considered family violence. Family violence is defined by section 5 of the Family Violence Protection Act 2008 (Vic). This section defines family violence as behaviour such as: physical or sexual abuse; emotional or psychological abuse; economic abuse; threatening or coercive behaviour; or any behaviour what controls or dominates the family member and causes them to feel fear for their safety or wellbeing. Additionally, if any of these behaviors are committed in front of a child, it may be considered family violence.
Common examples of family violence include 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 members property, and unlawfully depriving a family member of their liberty, or threatening to do so. Whilst these are common examples, allegations can vary and can be complex in nature. They may also include coercive behaviour and can even extend to economic or emotional abuse (see section 6 and section 7 of the Family Violence Protection Act)
If an allegation of family violence is made to the police, it is their responsibility to investigate it. They must follow several steps, which include interviewing the accused and applying for a family violence intervention order on behalf of the victim.
Typical Procedures in Family Violence Charges
If the police decide to charge you with family violence, they are obligated to make an application for a family violence intervention order on behalf of the family member making the allegations, as per section 43 of the Family Violence Protection Act. This will first entail an Interim Family Violence Intervention Order (FVIVO), which will have conditions restricting contact between the parties. Whilst it is common for police to make the FVIVO application, a family member also can directly apply to the court for a FVIVO. In line with section 43(1)(c), if the applicant is not a police officer, they must sign a declaration of truth that the application is based on true.
It is important to know that an interim order may be granted without the respondent (the accused person) being present, pursuant to section 54 of the Act. An interim order will be made where, on the balance of probabilities, the court is satisfied that it is necessary to ensure the safety of the affected family member, or to preserve the property of the affected family member. However, before a final order is made, an accused will have the opportunity to contest the allegations. This will occur at a contested hearing.
What to Do if You Have Been Falsely Accused of Family Violence
The first and most important step is to contact a lawyer. Even before being interviewed, you have the right to contact legal representation. This is crucial, as it allows for preliminary advice as to how to conduct the interview. It is important to know that anything you say in the interview can and will be used against you as evidence. Secondly, if you have been given an interim order, an experienced criminal lawyer is required to contest the allegations at a contested hearing. This is where evidence will be heard before a magistrate, and both parties will produce evidence in either support, or against, the allegations being substantiated. Evidence produced is typically done through an Affidavit, which is a legally sworn document containing evidence related to the allegations. This is also known as ‘Further and Better Particulars’. The contested hearing can be extremely stressful, and may require a barrister to advocate on behalf of the defendant. The preparation of comprehensive evidence prior to the hearing is also crucial, and the withdrawal of charges can be dependent on this. As such, experienced and expert legal representation is required. As opposed to criminal proceedings, where the evidence must substantiate the allegations beyond a reasonable doubt, in family violence proceedings the court must only be satisfied on the balance of probabilities that family violence has been committed. The lower bar required therefore means that it is more likely that a court may find family violence has been committed. If they are satisfied pursuant to section 74(1) of the Act, the court will grant the applicant a final order, with strictly enforceable conditions. Whilst it is possible to appeal final orders and findings made by the court in accordance with section 114 and 119 of the Act, this can be challenging and requires a rehearing to be conducted in either the County or Supreme Court.
How Galbally Parker Lawyers Can Help
Ultimately, these processes are complicated and stressful. If you find yourself in a situation where false allegations have been made against you, it can have serious impacts on your reputation, job and relationships. As such, it is important to engage with an expert family violence lawyer, such as those at Galbally Parker, who can navigate and prepare your case from start to finish.
