What is Family Violence?
Family violence is defined in s5 of the Family Violence Protection Act 2008 (Vic) as being behaviour that is physically, psychologically, emotionally, economically abusive or otherwise threatening, coercive or dominating behaviour that causes a family member to feel fear for their safety or wellbeing, or for another (such as a child). The laws around family violence also protect children who hear, see or are around family violence.
The definition of family members is designed to cover a wide range of individuals, beyond just blood relations. For example, it includes people who are in an intimate relationship with each other, such as de facto, married, or domestic partners, any relatives by birth, marriage or adopted. It also includes individuals who you treat like a family member, like a guardian, carer or someone who is related to you in the familial structure of your culture.
What is a Family Violence Intervention Order (FVIO)?
FVIOs are an order by the court to prevent someone from committing family violence (known as the respondent) against one or more protected individuals, who are often referred to as applicant or affected family members (AFMs for short). FVIOs can also have additional orders imposed on the respondent, such as prohibiting them from visiting the AFM’s home, school, or workplace, or prohibiting the respondent to contact the AFM via social media or via telephone or texts.
FVIOs can be applied for on the court website, or a police officer responding to the incident can make an application. When the application is made, there are no orders imposed on the respondent. But police can also apply for an interim intervention order, which imposes conditions on the respondent until the matter is heard before the magistrate and determined on a final basis.
What happens if you breach a FVIO?
Breaching FVIOs are extremely serious, as although FVIOs are civil orders, once a breach of a condition has occurred, a criminal offence has occurred. This means that criminal penalties will apply, if a person is found guilty of breaching any condition of the FVIO.
For the AFM, if they become aware of a breach by the respondent, it is important that they contact police and inform them of the breach. It may be useful to keep details of the breach, and any other incident if the respondent does not stop.
Depending on the severity of the breach, a respondent may be charged with a criminal penalty such as:
- Fine;
- Diversion;
- Good behaviour bond;
- Community Corrective Order (known as CCOs); or
- Gaol.
If the breach is minor, police may determine to provide a warning or caution to the respondent. However, it is extremely important to avoid breaching a FVIO to ensure that criminal penalties are not laid against you.
What if there is a parenting order already in place?
When there are inconsistencies between a parenting order and a FVIO, the decision of the Federal Circuit and Family Court of Australia (FCFCOA) will overrule any intervention order to the extent of the inconsistency. This is because the FCFCOA has Commonwealth jurisdiction, whereas intervention orders are made under state or territory law.
This means that if there is a requirement for one party, the respondent to the FVIO, to pick up the child (who is an AFM) but the FVIO states that the respondent cannot come within 100m of the AFM or cannot go to the other parent’s property, then the parenting order overrules that condition. However, if the respondent attends the property of the other parent for reasons other than facilitating the pickup arrangement, then they will be in breach of the FVIO.
However, it is important to seek legal advice, as navigating FVIOs and parenting orders are difficult and there is no one solution that will be applicable or appropriate to every overlapping matter.
If you have breached an intervention order, or you are being affected by someone who is breaching an intervention order, please contact us on (03) 9557 2915 or [email protected] so that our team can assist you.
