Family Violence Intervention Orders and your Family Law Matter
Family law is known as being a volatile area of law. Trying to decide who gets the kids and for how long can often turn into a bitter battle which runs into court. Once in court, an impartial judge with no personal knowledge of any of the people in the matter attempts to decide the dynamic of a particular family’s future.
Complicating this process are family violence intervention orders.
1. What is a Family Violence Intervention Order?
It is an Order made by a Magistrate which names an affected family member or members (the person or persons fearing for their safety) and a respondent (the person against whom accusations of verbal, physical, sexual, emotional or financial abuse are made). These particular Orders are deliberately easy to get due to the difficulty in proving allegations – a better safe than sorry approach.
The Order includes conditions designed to prevent the Respondent from using family violence against any of the people named on the Order.
They are dealt with under Part 4 of the Family Violence Protection Act 2008 (Vic) – this is easily accessible via astlii.edu.au.
Many people instantly worry about what damage these kinds of orders will do – particularly if the kids have been named on the order as well as the affected parent. What if the accusations are untrue and the judge believes them? These orders are more common than you might think.
2. The Outcomes of an Application for an Intervention Order
With an Intervention Order matter, there are 5 possible outcomes:-
- The matter proceeds to a contested hearing and is successful;
- The matter proceeds to a contested hearing and is unsuccessful;
- The matter is settled by consenting to an Intervention Order, without admitting any of the allegations are true;
- The matter is settled by the giving of an undertaking (a promise) to the Court not to engage in family violence; or
- The matter does not proceed and is withdrawn.
The following points are merely food for thought and designed to help you gain a more accurate idea of where your IVO falls on the scale.
3. Was an Order actually made or was there merely an application for an IVO?
For an intervention order to have actually been made, at least one party must have attended court. You must also be provided with a copy of the order if one is made against you.
4. Who is named on the IVO?
If the IVO/s name only the parents in each case, this is a cause for concern but unlikely to be detrimental to any parental application and even less likely to a property application.
5. Is this the first IVO? Are there more?
Many cases contain cross applications – that is, both parents have taken out applications against each other.
Many cases also have IVO’s many years old, or dotted steadily throughout the years right up to the date of the final hearing.
Or your case may just have the one.
6. Seriousness of the IVO
It is easy to become caught up in what you may consider an unjust accusation and to become worried about the kind of consequences this will cause. Verbal arguments can be nasty but many people have verbal arguments and they range considerably in intensity.
Depending on the severity of the accusations in the application or on factors outside of the IVO process – the incident may also attract the attention of organisations such as the police – have criminal charges been laid? – or the Department of Human Services – has an investigation been opened?
7. Have there been breaches of the IVO?
Should there be a serious breach or multiple breaches of an IVO, this will be recorded as its own incident and its circumstances considered.
It is important to note that breaching an intervention order is an offence; you may be arrested and charged for it.
As mentioned above, this may attract the attention of other authorities such as the police and DHS who will make their own assessments and who may pursue further action.
8. Intervention Orders and Family Court Orders
IVO’s are made via state law – they do not trump family court orders.
IVOS’s and family law proceedings operate in two separate spheres of law. They do not cross and are dealt with in separate jurisdictions – this means separate courts and different police (state vs federal).
Should you apply for Consent Orders (family law being in Federal courts), you will have to state if they are inconsistent with any family violence order, and, if it is, detail how.
Ultimately, the IVO will be taken into account together with all other documentation provided to the court. The Judge will attempt understand the dynamic of the particular family – in doing so they will attempt to gain perspective over the whole matter. The IVO forms only one part of this analysis and depending on the content of that IVO, its significance can vary greatly.