How to use the law to protect yourself from family violence during COVID-19?
The Courts remain open during the current crisis and are able to assist those experiencing family violence. Individuals are able to apply at their local Magistrates’ Court for a Family Violence Intervention Order. Particularly, in the challenging and uncertain times ahead the Courts are aware that more than ever family violence victims are in need of receiving protection.
Everyone has the right to live without fear from another person. A Family Violence Intervention Order serves the purpose of protecting people from immediate and future violence. A Family Violence Intervention Order can only be made against a family member, such as between people who share an intimate personal relationship, parents and children, relatives by birth, marriage or adoption, and people who you treat like a family member such as a carer or guardian. Most applications for Family Violence Intervention Orders are made by one partner against a former intimate partner particularly after a separation or where there is a hostile relationship. As the person applying for the Family Violence Intervention Order, you will be referred to as the ‘affected family member’ or ‘protected person.’ The person against whom the application is made is known as the ‘respondent.’
In deciding whether to make a Family Violence Intervention Order, the standard of proof is much lower than the criminal standard, with the Court only needing to be satisfied on the balance of probabilities that there has been an occurrence of family violence and that such family violence is likely to reoccur in the future. Family violence, as defined under section 7 of the Family Violence Protection Act 2008 (Vic), includes behaviour that is not only abusive or violent but also that which causes intimidation, threats, fear, domination or control. The actual occurrence of violence is not a pre-condition for seeking a Family Violence Intervention Order, it is enough that a person is in fear for their safety. The test employed is a subjective one measured on an individual’s own apprehension of fear.
Once you have lodged the application, the respondent will be served with the documentation and you will be given a hearing date. It is important that you attend Court on this day. If you are in need of immediate protection, the Court is able to protect you and your children if they are named on the application, by granting an interim order. This will grant you protection until the Court is able to hear evidence as to whether a final order is needed to protect victims from the likelihood of future violence occurring. At this stage, if the respondent consents to an order, a final order is granted by the Court. However, if the respondent opposes the Application, the matter will be stood down and listed for a contested hearing. The contested hearing, which can often occur months or sometimes years after the first hearing date, requires the Magistrate to determine whether a final order should be made. You are able to appeal the decision of a Family Violence Intervention Order to the County Court of Victoria within 28 days of the final order being made.
Every Australian state and territory Magistrates’ Court is vested with the power to restrict and prohibit a perpetrator of family violence from committing further acts of violence against another person. The Court aims to protect victims from future violence by imposing conditions upon the person who is alleged to have committed the family violence by restraining their behaviour and movement. This is critical in responding to address an imminent violent situation. One example of a condition imposed could be prohibiting the respondent from contacting you or from publishing material about you on the Internet. These conditions are listed on the form when you apply for a Family Violence Intervention Order. If the respondent breaks any of the conditions listed on the Family Violence Intervention Order this will amount to a criminal offence and the respondent can be charged by police. A Family Violence Intervention Order is nationally recognized and enforceable in every Australian state and territory.
Please note that if you are in immediate danger you should call 000.
Please use the following links to access further information on applying for a Family Violence Intervention Order:
https://www.police.vic.gov.au/intervention-orders
We appreciate that this is a distressing and overwhelming time. Should you have any questions or concerns, please do not hesitate to contact us.
