Not all criminal law practitioners represent individuals engaged in Intervention Order litigation. Our firm, however, regularly represents Applicants, Respondents and Protected People in Intervention Order and Apprehended Violence Order matters.
We appear in all Courts which consider and decide Intervention Order Applications. We represent those defending those Applications, including in County Court Appeals, and those applying for Intervention Orders for their own protection. We are also unique in that we represent Protected People, who may or may not want an Order against the Respondent but who have had Orders taken out on their behalf by Victoria Police. Increasingly, Police are using their powers to take out Intervention Order Applications where the person who they are purporting to protect does not want the Order and may be disadvantaged if an Order is put in place.
Intervention Orders are being more commonly used by individuals to obtain protection against a person who they alleged has committed family violence or prohibited behaviour, in order to exclude a person from a residence (in order to assist in family law disputes) or to assist in visa applications. Many people do not know that having a Family Violence Intervention Order in place can assist migrants to obtain visas, where that person’s residence is reliant on being in a relationship with a permanent resident and which relationship has deterioriated.
Similarly, being able to restrain another person from otherwise legal behaviour, can unfairly assist people who are engaged in litigation, debt recovery and family law proceedings. Most often, the individual Respondent to an Application can be significantly disadvantaged and feel pressured to concede to an Order being made against them. This is why it is important to seek legal advice and, preferably, to have an advocate appear for you in order to represent your interests to the Police, Applicants and also the Courts. Sometimes, even just an initial consultation can give you crucial advice and ease your mind walking into Court.
We have observed a very troubling trend whereby Applications for Intervention Orders are made as a form of family violence or harassment, the effect being that the individual Respondent is often displaced from their home, unable to see their children and sometimes prevented from attended their employment or school. These Applications are not always made in good faith and there can be ulterior motivations behind the Applications which need to be examined by competent legal representatives. Similarly, the Protected People to Police Applications may not want an Order in place and may also be significantly disadvantaged if the Respondent is excluded from the home or their employment.
Intervention Orders can be brought under two pieces of legislation:
Where the parties are family members or are/have been in a romantic relationship, the Family Violence Intervention Orders Act will apply. Where the parties are not related (ie they are neighbours or co-workers), the Personal Safety Intervention Orders Act will apply. However, in many respects, these two pieces of legislation are the same and the powers are extensive.
Legal Aid representation in Contested Intervention Order proceedings is not available under a grant, although Legal Aid lawyers can provide legal advice, unless the Court orders that a Legal Aid practitioner must appear. We have only seen such orders made to prevent an alleged family violence perpetrator from personally cross-examining a protected person. Accordingly, many Respondents (particularly to Police Applications), are unfairly disadvantaged because the Police have lawyers and the Protected Person does not have to fund any litigation. However, the Respondent is not equally represented. This is where our firm comes in, to even up the scales of justice.
We have also successfully applied for costs in situations of vexatious applications, so that the Applicant or the Police are required to pay the fees that have been accrued by the Respondent. On one occasion, we represented an individual in the entertainment industry, who was being harassed by an associate, who in turn alleged harassment by our client. We successfully countered the allegations against our client, obtained him protection and applied for (and received) an order for costs against his associate.
Once a Final Order has been made, a breach may result in a significant fine or a term of imprisonment and may have a devastating effect on families and relationships. Accordingly, our office advises clients to carefully consider the merits of the applicant’s case prior to consenting to an order being made. Intervention order matters exist in the quasi-criminal sphere, using civil law to restrain individuals from committing further acts or from maintaining any further contact with the applicant.
It is essential that competent legal advice is received and representation retained prior to Final Intervention Order matters being decided by the Court. However, below is some valuable information about the law in this area and how the jurisdiction works.
A quick note about Interim Orders. Interim Orders can be obtained in both the Family Violence and Personal Safety jurisdictions. They are usually obtained ex parte, which means that the person upon whom the Interim Order is ultimately served has no idea that the Application has been made. The Interim Order accompanies the Application for the Final Order and a summons to attend Court. An Interim Order has the same effect as a Final Order but only lasts the duration of the Court proceedings, until the Final Order is determined. If the application for a Final Order is refused, the Interim Order will cease to exist.
In some, relatively unusual, circumstances, an Applicant who has not previously had an Interim Order made in their favour will apply for one on the first Court date. This gives Respondents an opportunity to object to the making of the Order or to make submissions regarding what conditions should be contained on such an Order. If you have been served with an Interim Order or are aware that an application will be made for one, obtain legal advice so that you are aware of your options and your prospects of resisting such an application.
Family violence intervention orders
Family Violence Intervention Orders apply to parties who are related to one another, such as a spouse, domestic partner, parent, child or to people who have previously been in an intimate relationship with one another. The purpose of these orders under the Act is to –
- maximise safety for children and adults who experience family violence;
- prevent and reduce family violence to the greatest extent possible; and
- promote the accountability of perpetrators of family violence for their actions.
These Orders can be applied for by the person in need of protection (referred to as the applicant, complainant or affected family member) or by the Police. The person against whom the Order is proposed to be made is referred to as the respondent. Usually, the respondent will become aware that Intervention Order proceedings have been instigated against them when they are served with an Application for a Final Order and a Summons to attend Court. They may also receive an Interim Intervention Order, which is made in circumstances where the Court forms the view that the protected persons require protection from the respondent whilst the proceedings are underway and, before a Final Order is made.
Usually, the first Court appearance in relation to these proceedings occurs in the Magistrates’ Court and is referred to as a Mention. It gives both parties the opportunity to indicate whether the order will be made with the consent of the parties (ie the respondent agrees to the making of the Order, although usually without admitting the allegations made) or whether the Order is contested. If the Order is consented to by the respondent, or the respondent fails to appear in answer to the summons, the Order will be made by the Magistrate.
If the respondent appears in answer to the summons and indicates that he or she will contest the Application, the matter is usually listed for a further Mention, where the parties advise the Court of the expected duration of the Contested Hearing, how many witnesses will be called, whether the parties will be legally represented and so forth. The Court may also require one final appearance, referred to as a Directions Hearing, before the matter proceeds to Contest. At a Contested Hearing, evidence is heard from the applicant, the respondent and any other witnesses that either party calls. Both parties may be legally represented, as may any child who may be affected by the making of the order if the Court deems it necessary: Legal representation for a Child.
The Court will then make a decision about whether to grant the Application and make a Final order or not. The Magistrate must decide whether on the balance of probabilities, family violence has been shown to have occurred and an order is required to protect the applicant and any other persons listed under the order. The test is not beyond reasonable doubt, as it is in the criminal jurisdiction, but rather on the balance of probabilities. This test can be simply explained as the Magistrate finding that, more likely than not, family violence occurred and the applicant is more likely than not going to require the Order.
If an Order is made, it can be made with a variety of conditions, including:
- the respondent must not commit acts of family violence;
- the respondent must not approach the protected person or go within a certain distance of their person, where they live, work or attend school;
- the respondent must not contact the protected person;
- the respondent will be excluded from the protected person’s residence (even if it was also their own residence); and
- the respondent be assessed for a Counselling Order.
Any breach of the conditions of the Family Violence Intervention Order is an offence and can be the subject of a Police charge, bringing the respondent before the Court as a criminal accused.
Family violence safety notices
A Family Violence Safety Notice is an enforceable document, which is issued by a Sergeant of Police or higher rank. A Notice is made in circumstances where a Police member has responded to a an incident which they believe to involve family violence and there is no current Intervention Order in place. The Notice is issued upon application by the attending Police member to the Senior member, in order to give the Police and/or the affected family member an opportunity to apply for an intervention order from the Court. In order for a Notice to be issued, the Police member must believe on reasonable grounds that the Notice is necessary in order to –
- ensure the safety of the affected family member; and/or
- preserve any property of the affected family member; and/or
- to protect a child who has been subjected to family violence committed by the recipient of the Notice.
The Notice will have effect until the issue of whether a Family Violence Intervention Order or Interim Order is decided by a Court.
Personal safety intervention orders
Personal Safety Intervention Orders (PSIO) apply to parties who are not related to each other and, accordingly, do not fall within the scope of the Family Violence Protection Legislation. These Orders apply to neighbours, former colleagues, former friends and strangers who have previously committed offences against the protected person.
We have seen an incredible increase in the number of PSIO Applications being brought before the Courts. One potential reason for this is that Police officers regularly recommend that people apply for an order to diffuse a neighbourhood disagreement or to restrain a person from contacting them. The effect of this has been that usually the Respondent then applies for an Order against the original Applicant, causing cross-applications to be brought and determined before the Courts.
The dual purposes of these Orders are:
- to protect the safety of victims of assault, sexual assault, harassment, property damage or interference with property, stalking and serious threats; and
- to promote and assist in the resolution of disputes through mediation where appropriate.
Prohibited behaviour includes:
- sexual assault;
- property damage or interference; or
- making a serious threat.
These Orders are usually applied for by the applicant in person, but may also be applied for by the Police. The process through which the Application progresses is the same as the process for Family Violence Intervention Orders, so please refer to the above section for information regarding the procedure.
Interim Orders may also be made to provide protection to the applicant whilst the proceedings are underway. However, whilst the proceedings are before the Court, the Court may also give mediation directions to the parties who will be asked to explore whether the dispute can be settled without the intervention of the Court.
In making a Final Order, the Court must be satisfied on the balance of probabilities that the respondent has committed prohibited behaviour against the affected person, is likely to continue to do so and this behaviour would cause a reasonable person to fear for his or her safety : section 61.
Appeals and applications for rehearing
Built into the Family Violence and Personal Safety Intervention Order legislation are provisions that allow for Appeals and Rehearings of Applications. Appeals must proceed to the County or Supreme Courts. However, re-hearings may be determined in the Magistrates’ Courts. It is an inconvenient truth that sometimes things don’t go right on the day. Maybe you were not represented. Perhaps new evidence was introduced that you were not put on notice of. Intervention Orders can sometimes be dealt with flippantly by Courts and practitioners, without a true appreciation of the effect that the making of an order can have on an individual. Whether you have a matter that may be subjected to an Appeal or Rehearing depends on the outcome and which legislation your matter falls under. You have 30 days from the time of the final order being made to instigate Appeal proceedings. If an Intervention Order matter has been finalised and you are unhappy with the result, immediately contact an experienced Intervention Order lawyer to discuss your options.
IMPORTANT NOTE: There is a strict 30 day timeframe within which to file your appeal to the County Court. If you do not, the County Court has no inherent jurisdiction to hear an Appeal out of time. This position was affirmed in the case of Summers (a pseudonym) v McKenzie (a pseudonym)  VCC 2015 in the case of Family Violence Intervention Orders, and Austin v Dobbs  VSC 355 in the case of Personal Safety Intervention Orders.
Firearms licences/ police & army personnel
The imposition of a Final Intervention Order (whether pursuant to the Family Violence or Personal Safety legislation) will necessarily significantly affect Respondents who are Police members, Army officers or require a Firearms Licence as part of their employment. Once an Interim or Final Order is made against you, regardless of whether either order contains a condition which suspends a Firearms Licence and requires the removal of firearms, a Respondent will automatically become a prohibited person under the Firearms Act 1996. Only once the Application is struck out, refused or converted into a Final Order, can a Respondent apply to be deemed a non-prohibited person and, therefore, get their Firearms Licence back.
For Police members, this means that they are usually suspended from duties following the imposition of an Interim or Final Order and when they return to duties they can only do so in an administrative capacity. In these circumstances, a Police member must make an Application under section 189 of the Firearms Act to be deemed a non-prohibited person and appear at a further Court appearance for this purpose. The Affected Family Member or Protected Person under the Order will also be advised and their views, if they any, considered.