In Victoria, “domestic violence” is also known as “family violence”. The Family Violence Protection Act 2008 (Vic) is the primary piece of legislation that regulates family violence.
Under the Act, family violence is defined as behaviour towards a family member that causes the family member to fear for the safety or wellbeing of themselves or another person.
In family violence matters, the Court may impose a number of restrictive conditions upon the respondent by granting a Family Violence Intervention Order. In some circumstances, the police may also file additional criminal assault charges against the respondent.
In this article, our family violence lawyers will explain in detail:
- What is Family Violence?
- Who is Considered a Family Member?
- What is the Penalty for Family Violence?
- How Can You Defend a Family Violence Intervention Order?
- What Happens If You Contravene a Family Violence Intervention Order?
- What Should You Do if You’re Accused of Family Violence?
If you have been charged with assault or need help defending a Family Violence Intervention Order, please contact Sher Criminal Lawyers. Our specialist family violence lawyers in Melbourne are experts in intervention order matters. We can help you assess the strength of your case, advise you of your options and represent you in Court.
Please note that this article is not legal advice. It only presents general information.
What is Family Violence?
Section 5 of the Family Violence Protection Act (Vic) defines family violence as behaviour by a person toward their family member that is:
- Physically abusive (e.g. hitting, kicking, burning, neglectful care);
- Sexually abusive (e.g. using threats to pressure someone into sex);
- Emotionally or psychologically abusive (e.g. verbal or written bullying or taunting);
- Economically abusive (e.g. controlling another person’s finances without consent);
- Threatening (e.g. threatening physical or emotional harm);
- Coercive (e.g. threatening self-harm if the relationship ends); or
- Controlling and dominating causing fear (e.g. threatening to hurt someone else)
The FVP Act also states that family violence includes any behaviour that causes a child to hear, witness or be exposed to the effects of any of the above-listed behaviour.
Who Is Considered a Family Member?
Section 8 of the Family Violence Protection Act (Vic) states that any of the following relationships may be considered a family member:
- Current and previous spouses or domestic partners (e.g. husband, wife, de facto partner);
- People who have or had an intimate personal relationship (e.g. girlfriend or boyfriend);
- Stepfamily (e.g. step dad or step mum);
- Relatives (e.g. brothers, sisters, grandparents, mother-in-law, father-in-law, etc.);
- Children who regularly reside with the respondent (or previously have); or
- Children who have an intimate personal relationship with the respondent (or previously have).
What is the consequence for Family Violence?
In a family violence matter, the victim or the police may seek a Family Violence Intervention Order against the accused (i.e. the respondent). If the Magistrates’ Court grants the Intervention Order, the respondent may be subject to any number of conditions that the Court deems necessary or desirable, including:
- They cannot commit family violence
- Exclusion from the family residence
- Exclusion from approaching or contacting certain family members
- Personal property is subject to the directions of the Magistrates Court
- Limited or prohibited child contact
- Suspension or cancellation of their firearms licence
A Family Violence Intervention Order does not give the respondent a criminal record. However, breaching the conditions of an Intervention Order is a criminal offence (discussed below).
In addition to seeking an Order, the police may also criminally charge the accused with assault. Assault charges are legislated under the Summary Offences Act 1966 (Vic) and the Crimes Act 1958 (Vic). The penalty for assault ranges from 3 months imprisonment (for minor offences) to 20 years imprisonment (for major offences).
Our assault experts at Sher Criminal Lawyers can help you defend both a Family Violence Intervention Order and criminal assault charges.
How Can I Win a Contested Family Violence Intervention Order?
If the police or the victim apply for a Family Violence Intervention Order, the respondent will have the opportunity to respond during a hearing at the Magistrates’ Court.
During the hearing, the applicant will have to prove that an Intervention Order is justified in the circumstances. The respondent can either consent to or argue against the Family Violence Intervention Order being made against them.
To successfully defend against a Family Violence Intervention Order, the respondent must prove to the Magistrate that:
- They have not committed family or domestic violence; or
- They are not likely to commit family or domestic violence again.
It is an offence for the applicant to knowingly make a false statement when applying for a Family Violence Intervention Order (s 43 FVPA). The maximum penalty for doing so is a fine of 600 penalty units or 5 years’ imprisonment or both (s 153(2) FVPA).
For further details, please see How to Prepare for an Intervention Order Hearing.
How Can I Remove or Change a Family Violence Intervention Order?
The applicant or the respondent can apply to the Magistrates’ Court for leave to vary, extend or revoke a Family Violence Intervention Order.
If the respondent wants to do so, they must first fill in the application form to extend, vary or revoke a Family Violence Intervention Order. That form must be presented to the same Court where the Intervention Order was originally made.
A date will be set for a court hearing, during which the magistrate will decide whether the respondent is allowed to apply for permission to change the Order. The respondent must prove to the magistrate that new facts or circumstances have arisen since the Order was made.
If the magistrate finds that the new facts or circumstances may justify changing or revoking the Intervention Order, the respondent’s application will be served on the applicant. Another court date will then be set, during which the magistrate will finally decide whether the Order should be changed or revoked after hearing from both parties.
Our family violence experts at Sher Criminal Lawyers can help you apply to change or revoke a Family Violence Intervention Order.
What Happens If I Contravene a Family Violence Intervention Order?
Under the Family Violence Protection Act 2008 (Vic), it is a criminal offence to breach the terms and conditions of a Family Violence Intervention Order or Safety Notice.
The three main offences related to contravening a Family Violence Intervention Order are:
- Contravening a Family Violence Intervention Order (s123) – maximum penalty of 2 years imprisonment or a fine of 240 penalty units or both.
- Contravening a Family Violence Intervention Order intending to cause harm or fear for safety (s123A) – maximum penalty of 5 years imprisonment or a fine of 600 penalty units or both.
- Persistent contravention of a Family Violence Intervention Orders (s125A) – maximum penalty of 5 years imprisonment or a fine of 600 penalty units or both.
If you have been charged with contravening a family violence intervention order, your matter will be heard in either the Magistrates’ or County Court depending on the seriousness of the offence. It is crucial that defendants obtain advice from a family violence lawyer as early as possible.
What Should I Do If I’m Accused of Family Violence?
If you are the respondent in a Family Violence Intervention Order matter, please contact Sher Criminal Lawyers immediately.
Our team of specialist family violence lawyers is highly experienced in Intervention Order matters and prides itself on outstanding results. We expertly analyse each case on its own merits and assess which legal options will result in the best possible outcome for you and your family.
Our defence experts frequently appear before Magistrates Courts all around Melbourne and wider Victoria, assisting clients to apply, respond and defend charges in relation to Family Violence Intervention Orders. We can also help you defend criminal charges related to assault or contravening an Intervention Order.
Please get in touch and ask for a free consultation by way of Zoom, Facetime or in person at our Melbourne or Moorabbin offices. Our specialist family violence lawyers are available 24/7 and here to help in your time of need.