May 29

Family Violence Intervention Orders

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. 

May 29

What Are Parenting Orders?

Sometimes, parenting disputes can lead to parenting orders to be made by the court, which are orders that outline the parenting arrangements for a child or children of a relationship or marriage. These orders will include information about who the child/ren will live with and where, whether one parent has sole parental responsibility, and who the child will spend time with. 

Sometimes, these orders can also include information as to where the child/ren attend school, how medical decisions will be made for the child/ren, how communication will be facilitated between the children – such as telephone calls, Zoom, FaceTime or apps like AppClose – or even how travel arrangements with the child will work. 

Courts will usually make parenting orders following an agreement being reached between the parties through consent orders or following a court hearing. Parenting orders are legally binding, which means that they must be strictly complied with or else the Court may impose penalties on the contravening party. 

What happens if parenting orders are contravened?

If a contravening party breaches any parenting orders, they will have to satisfy the court that there was ‘reasonable excuse’ to breach the orders. 

Reasonable excuse has a specific definition under s70NAE of the Family Law Act 1975 and circumstances where it may arise include:

  • The contravening parent (known as the respondent) did not understand the obligations imposed upon them at the time of the contravention and the court is satisfied that the respondent ought to be excused in respect of their contravention, or 
  • Where the respondent contravened the orders as they felt it was necessary to protect the health or safety of a person (including the respondent or the child), and their contravention was not prolonged longer than necessary. 

Penalties that can be imposed on the respondent are dependent on the matter and type of contravention, but range from:

  • Order the respondent to attend a post-separation parenting program; 
  • Vary the primary parenting order;
  • Compensate the other parent for time lost with the child/ren; 
  • Order payment of a fine or payment of the other parties’ legal fees (either in part or full); 
  • Order participation in a community service; or
  • Require the respondent to enter a bond. 

The non-contravening parent, if they believe that the other parent has contravened the orders, can enforce previous parenting orders as part of their existing application in their parenting matter or make a separate contravention application. 

However, it is important that before making any contravention applications that you engage in legal advice, as unsuccessful applications can result in costs orders made against you. 

What happens if the child does not want to see their parent?

In some circumstances, children may refuse or be unwilling to spend time with the other parent, but this is not a reasonable excuse. Per s60CC(2)(a) of the Family Law Act, children have a right to a meaningful relationship with both parents. This is one of the factors that the court will consider when determining parenting arrangements. 

This means that both parties have a positive obligation imposed upon them to ensure that they do what they can to facilitate a relationship between the child and the other party. 

If you require more information or would like to discuss your parenting matter with us, please contact us on (03) 9557 2915 or [email protected] to assist you.  

October 7

Questions to consider when preparing your estate planning

  • Who you want to take care of your financial, personal, and medical affairs if you were to lose capacity by way of Enduring Powers of Attorney (financial and personal) and Medical Treatment Decision Makers?
  • Who you want to be your executor and/or trustee?
  • Do you need to consider incorporating a testamentary trust in your Will?
  • Who should have control of your business interests including your Family Trust, Unit Trusts, Companies, Self-Managed Super Funds, and Small Businesses?
  • What do you want to happen to assets owned jointly or in entities you control?
  • Who do you trust to make these decisions when you no longer have capacity or have passed away?
  • What is the most tax-effective method of transferring your assets?
  • What life insurance do you have in place?
  • Who are the beneficiaries of any death benefits associated with your superannuation fund?
  • Do you have minor or disabled beneficiaries?
  • What happens to your digital currency?
  • What happens to your digital assets such as emails and social media accounts?
  • Ensuring spouse, partner, children, dependants are looked after when you die or become incapacitated.
  • Ensuring that your pets are taken care of with relatives or charities.
  • Bequests are made to charities of your choice.
October 5

Legalisation, Authentication and Apostilles

Embassies and Consulates

Documents notarised by an Australian Notary Public for use overseas may be required to be “legalised” or “authenticated”, before accepted by foreign governments or businesses.

Foreign governments or businesses usually require Australian notarised documents, as well as other Australian public documents, to be either “apostilled” by the Australian government, or “legalised” by their Embassies or Consulates in Australia.

The Department of Foreign Affairs & Trade (DFAT) issues Apostille Certificates or Authentication Certificates, authenticating the seals and signatures of Australian Public Notaries.

Those who require documents to be notarised should first make enquiries with the appropriate Embassy or Consulate of the country where their document is to operate, to ensure that their document does not need to be apostilled, authenticated or legalised.

Legalisation and Authentication

“Legalisation” is the process by which the signature and seal of a Notary Public is authenticated before a notarised document is valid in a foreign country.

The need for the authentication process is to establish a chain of authentication with respect to the signature and seal on notarised documents. That is, by authenticating notarised documents, DFAT verifies the signatures and seals appearing on notarised documents.

Apostilles

DFAT either affixes or attaches Apostille Certificates or stamps onto notarised documents originating in Australia for use in most foreign countries.

It does so because since 1995, it has been a signatory to “The Hague Convention Abolishing the Requirements of Legalisation for Foreign Public Documents”.

Not all countries are signatories to this Convention and those countries that are not still insist that notarised documents be “legalised”.

Italy, Greece, The Netherlands, Russia and UK are among signatories to the Hague Convention; UAE, China, Vietnam and most Middle Eastern countries are countries that have refrained from ratifying the Convention.

An Apostille Certificate, signed by an officer of DFAT, confirms that the notarised document has been signed by the named person acting in his or her capacity of a Notary, and bears the seal of such Notary Public.

Fees are payable to DFAT for Apostille and Authentication Certificates.

It is not the responsibility of a Notary Public to advise on the official requirements or processes of the Australian Government or the foreign country where the notarised document is destined for use. You should make your own investigations.

For a full explanation of the legalisation process, including Authentication and Apostille Certificates, visit www.apostille.com.au

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