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Family Law and the impact of family violence

April 30, 2018 by Douglas McMillan

The complex collision of the criminal justice system and the family law system – family violence

Background

The impact of family violence on family law matters is now prominent. Historically, family violence was seen as a personal matter between family members and the police and/or courts did not have comprehensive laws and protocols to address the significant negative impact on families that family violence perpetuates.

Victoria Police have now adopted a comprehensive protocol for dealing with family violence.  The judiciary along with barristers and solicitors who regularly practice in the areas of family violence and family law now have their own practices and procedures for addressing family violence. The significant impact of family violence intervention orders, or personal safety intervention orders if you are not a family member, are extensive and breaches can lead to large fines, and/or a bond, and potentially imprisonment, at first instance.

Persons committing family violence can be removed from the family home and there are provisions under the Residential Tenancies Act for leases to be broken and/or parties to be directed how those lease arrangements are to be conducted into the future.

With respect to family law matters and parenting in particular, the implication of family violence and intervention orders may result in significant restriction of time with children due to that family violence. Putting aside the vexed question of whether people make allegations that are exaggerated, or false, to gain an advantage in a family law proceeding, the significant impact of intervention orders are now grappled with on a daily basis by judges, magistrates, barristers, solicitors, Victoria Police and the community at large.

The difficulties with respect to false allegations can be frustrating and costly as allegations are rarely tested until a fully contested final hearing occurs, and even if they are dismissed at the Magistrates Court of Victoria level, the allegations made in the intervention order application may still be raised against a party in a family law proceeding. Ultimately, outcomes in these matters can have profound consequences for those involved, including children, in this type of litigation.

Interim intervention orders are not determined by the criminal standard of proof, that being beyond reasonable doubt, but the lower standard of balance of probabilities in the civil jurisdiction.  The reality of the lower standard of proof is that more interim orders can be made without testing the truth of the allegations.

Intervention orders do not preclude a person making an application to the Family Court of Australia or Federal Court of Australia for parenting orders.  The prominent place that family violence and psychological abuse now have under the Family Law Act 1975, means that intervention order findings will have a significant impact on a parent’s ability to spend time with his/her children.  The Family Court of Australia or Federal Circuit Court of Australia can order supervision of a parent at a contact centre, contact under the supervision of family members or in more severe cases, no contact whatsoever.

Significant problems with compliance arise with supervision orders, often based on interim intervention orders, as the ability of parties to spend time with their children must be co-ordinated with third party family members or friends to assist a family member to spend time with their children. While these measures are supposed to operate in the short to medium term, they can be in place for long periods of time, including years in some matters.

In genuine cases of family violence, the restrictions on time with family members, including children, can give the party committing acts of violence time to undertake psychological and/or psychiatric counselling, rehabilitation if drugs or alcohol are involved and/or mental health problems that are relevant can be addressed to improve the functioning of family units.  Of course, this applies in matters where rehabilitation is possible.  In very serious family violence matters, family law property settlements may be affected.

The myriad of complexities that arise from family violence, including police involvement and different courts performing different roles should not be underestimated and hence the need for experienced legal advice in these areas being sought at the earliest time.

The Law – Family Violence Protection Act 2008

For people who are in familial relationships, the Family Violence Protection Act 2008 provides protection for family members and they restrain the following types of conduct:

Other behaviour that can be restrained are as follows:

The intervention orders also cover various other areas including:

Magistrates Court of Victoria Interim Intervention Orders and Final Intervention Orders usually contain exceptions that include the following:

 Breaching intervention orders

Intervention Orders breaches have significant legal consequences attaching to them, including the following:

 Appealing intervention orders

If you wish to challenge the findings of family violence and/or a final determination that an intervention order is required for any period of time in a matter that may include indefinite restrictions, you may appeal against the decision in the County Court of Victoria within 28 days of the final order being made.

It is not possible to appeal against the making of an Interim Intervention Order, noting that these are often made when only one party is present at the Court. This puts the person with the allegations made against them in a significantly disadvantaged position because once the order is made it cannot be removed without settlement of the whole matter or by Order of the Court, or a Court’s final decision.

Revocation, variations and extensions of intervention orders

Persons can revoke intervention order conditions if they are no longer in fear for their safety, or that of children.

Variations to intervention orders may also be made in circumstances where the original orders do not cover certain aspects that may arise during the course of the intervention order term.

When the term of an intervention order is coming to an end, a party with an intervention order may apply to have the intervention order extended, though they must provide evidence to the court as to why the extension should be granted. Usual reasons for extension are that a person is still in fear for their safety or a person continues to breach the intervention order and/or other circumstances have continued to arise that give cause for a person to fear for their safety, or that of children.

Personal Safety Intervention Order Act 2010

A person can apply for an intervention order even if they are not in a familial relationship, and hence the Personal Safety Intervention Order Act 2010 assists those persons.

It responds to the issue of where a party is being stalked by a person and/or engages in a course of conduct which has the intention of causing physical or mental harm to a person or arousing apprehension or fear of the safety or any other person, including any children.

Orders that may be made include, on a non-exclusive basis, the following:

There are also prohibited types of conduct such as:

Consequences of criminal charges and conviction

It is important to note that intervention orders do not result in a criminal record being recorded against a party, but if a court finds you guilty of breaching the intervention orders, charges with respect to the breaches are brought by Victoria Police. The consequences of a police record from a conviction on criminal charges will however result in a criminal record and may result in ongoing problems with respect to employment, overseas travel and otherwise. Charges being brought by Victoria Police are costly to defend, as are all court applications.

Summary

It is apparent that the vexed questions raised by the intersection of family violence, the criminal justice system, and the family law system will only become more complex in the future.  An experienced practitioner should be consulted at the earliest time to give full and proper advice with respect to the circumstances of each individual matter.

For further information please contact:

Douglas McMillan
+61 3 9088 0488
dem@whiteandmason.com.au

 

 

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