Legal Rights

Family Violence – Legal Rights

New Family Violence Protection Act

In December 2008 the new State-side Family Violence Protection Act was put into effect in Victoria.

You can view the whole Act by clicking here

See pdf link …' Key Messages' fact sheet

This information is also available in - Arabic pdf - Burmese pdf - Chinese pdf - Croatian pdf - Dari pdf - Dinka pdf - Easy English pdf

Family Violence – Legal Rights

Legal Services –

Aboriginal Family Violence Prevention & Legal Service: 1800 105 303

http://www.fvpls.org/

Geelong Community Legal Service: 5221 4744

South West Community Legal Centre: 1300 361 680

(in some circumstances legal aid will make a grant for a contested legal matter)

Barwon S.W. Police (24 hours) –

Bellarine: (03) 5256 2698

Colac: (03) 5231 5599

Corio: (03) 5273 9555

Geelong: (03) 5225 3100

Hamilton: (03) 5572 1999

Mt Gambier S.A.: (08) 8735 1020

Portland: (03) 5523 1999

Warrnambool: (03) 5560 1333

The Police have a Code of Practice for the Investigation of Family Violence which guides their responses to family violence. You can download the Code through clicking on the following link. http://www.police.vic.gov.au/content.asp?Document_ID=674

Magistrates Courts -

Colac: 5231 5455

Geelong: 5225 3333

Hamilton: 5572 2288

Koori Court: 5564 1111

Portland: 5523 1321

Warrnambool: 5564 1111

Intervention Orders -

An intervention order is a court order granted by a magistrate under the Family Violence Protection Act 2008. It is civil remedy designed to protect a person(s) from family violence by another person.

A magistrate may only make an intervention order if satisfied that it is necessary to restrict a person’s (the respondent’s) future behaviour in relation to another person (the affected person).

An intervention order limits certain types of behaviour of people, for example, what they can do, where they can go. An intervention order may prohibit or restrict a person (the respondent) from:

behaving offensively towards the affected person
approaching (or going near) an affected person;
attending at premises where an affected person lives, works or frequents;
being at a particular location;
contacting, harassing, assaulting, stalking, threatening or intimidating an affected person;
damaging property owned by an affected person; and
causing another person to engage in conduct that is prohibited by the intervention order.

An intervention order may also:

direct the respondent to participate in prescribed counselling, and
revoke any license, permit or other authority held by the respondent to possess, carry or use firearms.

Who can apply for an intervention order?

An application for a family violence intervention order may be made by -

(a) a police officer; or

(b) an affected family member; or

(c) if the affected family member is an adult, any other person with the written consent of the affected family member; or

(d) if the affected family member is a child—

(i) a parent of the child; or

(ii) any other person with the written consent of a parent of the child or with the leave of the court; or

(iii) the affected family member with the leave of the court if the affected family member is of or above the age of years; or

(e) if the affected family member has a guardian—

(i) the guardian; or

(ii) (ii) any other person, with the leave of the Court.

Pathways for obtaining an intervention order?

During business hours an affected person can directly apply for an intervention order at any Magistrates' Court location in Victoria. Sometimes affected persons can not wait till the court is open for immediate protection of an intervention order.

Accordingly, police have capacity to apply on behalf of the affect person(s) for an intervention order outside of court hours. There are three options available:

· Family Violence Safety Notice – issued directly by police. Not only is it an after-hours application for an intervention order, but also contains conditions to help protect the affected family member(s) and a summons for the respondent to attend court. Once issued the notice must be heard at court (normally) within 72 hours. The notice remains effective until the court has made a decision and then if the court has granted an interim or full intervention order, the conditions on the Notice remains in effect until the new order has been served on the respondent. If the respondent contravenes (breaches) the Notice, the respondent commits a criminal offence.

· Application and Warrant – issued through police contacting the Magistrates Court of Victoria After-hours Service. Once issued by a court registrar police can execute the warrant and arrest the respondent. The respondent is then bailed to attend court with conditions that will help protect the affected family member(s).

· Interim-intervention order – can also be granted outside of court hours by police applying to the after-hours Magistrate. If granted the interim order contains conditions made by the Magistrate. It is served on the respondent with an Application and Summons. After service, if the respondent contravenes (breaches) the interim order, the respondent commits a criminal offence. The interim order help protect the affected person(s) until the full intervention order hearing which is usually about a week or two later.

· When can an intervention order be made?

A Magistrate can only make a final intervention order after the respondent has been served with a copy of the Application for an Intervention Order and evidence regarding the complaint has been heard by a Magistrate in Court.

A magistrate may make an intervention order if satisfied that the respondent has:

assaulted a family member or damaged their property, and is likely to do this again;
threatened to assault a family member or damage their property, and is likely to carry out these threats
harassed or molested a family member, or has behaved in an offensive manner towards them, and is likely to do so again.

Before making an order that restricts the respondent's access to any premises, the Court must take into account:

the need to ensure that the affected family member is protected from violence (this is to be the highest consideration);
the welfare of any children who may be affected by the intervention order; and
the accommodation of all people, including children, who may be affected by the intervention order.

What is the definition of 'family member'?

1) For the purposes of the Family Violence Protection Act, a family member, in relation to a person (a relevant person), means—

(a) a person who is, or has been, the relevant person's spouse or domestic partner; or

(b) a person who has, or has had, an intimate personal relationship with the relevant person; or

(d) a child who normally or regularly resides with the relevant person or has previously resided with the relevant person on a normal or regular basis; or

(e) a child of a person who has, or has had, an intimate personal relationship with the relevant person.

(2) For the purposes of subsections (1)(b) and (1)(e), a relationship may be an intimatepersonal relationship whether or not it is sexual in nature.

(3) For the purposes of this Act, a family member of a person (the relevant person) also includes any other person whom the relevant person regards or regarded as being like a family member if it is or was reasonable to regard the other person as being like a family member having regard to the

circumstances of the relationship, including the following—

(a) the nature of the social and emotional ties between the relevant person and the other person;

(b) whether the relevant person and the other person live together or relate together in a home environment;

(d) the cultural recognition of the relationship as being like family in the relevant person's or

other person's community;

(e) the duration of the relationship between the relevant person and the other person and the

frequency of contact;

(f) any financial dependence or interdependence between the relevant person or other person;

(g) any other form of dependence or interdependence between the relevant person and the other person;

(h) the provision of any responsibility or care, whether paid or unpaid, between the relevant

person and the other person;

(i) the provision of sustenance or support between the relevant person and the other person.

Example - A relationship between a person with a disability and the person's carer may over time have come to approximate the type of relationship that would exist between family members.

(4) For the purposes of subsection (3), in deciding whether a person is a family member of a relevant person the relationship between the persons must be considered in its entirety.