Intervention orders

1. Intervention orders Training for HPLC, June 2010 Belinda Lo Solicitor and Legal Projects Officer Fitzroy Legal Service

2. What are they? • Sometimes called ‘restraining orders’ or apprehended violence orders (AVO’s) • Civil orders that prevent someone from behaving offensively towards another. • The orders can encompass a number of general conditions that parties will have to adhere to (discussed in later slides) • If you break an intervention order, you can be charged with a criminal offence

3. What legislation applies? • Changes to political climate and attitudes towards family violence Now • Family Violence Protection Act 2008 • Stalking Intervention Orders Act 2008 • Replaces previous Crimes (Family Violence) Act 1987 -recognises family violence

4. Family Violence Protection Act • Characterises Family Violence as a violation of human rights • Broadens the definition of ‘family violence’ • Broadens the definition of ‘family member’ • Introduces powers enabling a protected person to apply under the Residential Tenancies Act for an existing tenancy agreement to be terminated and a new tenancy agreement to be entered into with the landlord.

5. Definitions of Family Violence • What is family violence? • Physical • Sexual • Emotional/Psychological • Economic • Threatening • Coercive • Verbal • Behaviour that causes a child to hear or witness or otherwise be exposed to the effects of Family Violence section 5, FV PA 2008

6. “Control and intimidates” • Family Violence is also behaviour that • “in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member of another person” • Very broad • Does not have to be a history of behaviour • Can be isolated

7. Some terminology Person applying for order: • Affected Family Member (AFM) / applicant Person who is protected by a family violence intervention order (or safety notice) • Protected person (PP) Person responding to order • Respondent (R)

8. Some terminology (cont) • a) in relation to a respondent, a person who is so closely connected with the respondent that the respondent can influence the actions of the person, whether directly or indirectly; and • b) in relation toan affected family member or a protected person, a person who provides the affected family member or protected person with assistance or support;

9. Who can apply for one? (Family Violence IVOs) • Your client (Affected Family Member (“AFM”)) • Police officer • An ‘associate’ • Another person with the written consent of the AFM • If the AFM is a child - • A parent of the child • Another person with the written consent of the parent of the child (or with the leave of the court) • If the AFM is14 years old or above, can apply him/herself with the leave of the court • The guardian or any other person with the leave of the court

10. Who can they be against? • Any family member. • Any person who is in a ‘family like relationship’ with the person • Anybody who, taking into account the circumstances of the relationship between the parties, it is reasonable to regard as having a family type relationship. • See handout.

11. Police protection before court process • Holding powers • FVPA Part 3, Division 1, ss 12-23 • Family Violence safety notices • FVPA Part 3, Division 2, ss 24-41

12. Holding powers • FVPA Part 3, Division 1, ss 12-23 • Powers to direct a person to remain at a place, or to go to and remain at a place as directed. • In the event that the direction is not followed, powers to extend to detain someone using reasonable force • Max six hours duration of direction or detainment in order for a FV IVO, Safety Notice or warrant for arrest to be issued • Can be extended in exceptional circumstances with the court’s leave • Not more than 10 hours after the original direction was made • Police can not interview or question a directed person in relation to any alleged offence (separate to questioning when arrested)

13. Holding powers • Police officer can only exercise these powers if there if s/he intends to make an application for: • A Family Violence Intervention Order • An order to vary the FV Intervention Order • A FV safety notice And • There are reasonable grounds for suspecting the person is an adult And • It is reasonable for the officer to believe that holding powers should be used to ensure the safety of an AFM or to preserve property of the AFM

14. Safety Notices • FVPA Part 3, Division 2, ss 24-41 • To be used outside court hours • Issued by police • Can ensure respondents are excluded from the AFM’s home, or within a specified distance from a particular place • Application can be made by a police officer - • to ensure the safety of the affected family member; or • to preserve any property of the affected family member; or • to protect a child who has been subjected to family violence committed by the respondent;

15. Safety notices (cont) • Max duration generally 72 hours (ie: safety notice issued on Friday and first mention date for FVIVO is on the following Monday) • Exceptions if public holidays • Police officer need to include the accommodation needs of the respondent, AFM or any children when issuing a safety notice • Breaching the FV Safety Notice is a penalty of max 2 years imprisonment

16. What’s the court process? • Interim • Final • Appeal • It is likely that you will see clients after an interim and prior to a final application • You may see clients who also want to apply for FV IVOs

17. What do you need to prove? Interim stage: • On the balance of probabilities that an interim order is necessary to • Ensure the safety of the AFM • Preserve any property of the AFM • Protect a child has been subjected to family violence committed by the respondent • Or consent to the order by both parties • Or Family Violence Safety Notice has been issued and the court is satisfied that there are not circumstances that would justify discontinuing the protection until final order

18. What do you need to prove? Final • The court must be satisfied on the balance of probabilities that the respondent has committed family violence against the AFM and is likely to do so again • Associate orders are also able to be made at this stage

19. Evidence • Written • Oral • Court not bound by the rules of evidence in hearing an application • Evidence can be provided via affidavit, sworn statement, video-link, closed courts etc

20. What makes a good application? • As many relevant facts as possible in relation to: a) the most recent event (described in detail) b) past events (described in detail) c) how these events have affected you. • Dates of violence or threats of violence (describe the threats) • Credible witnesses (family members are ok)

21. How to defend an application • Witnesses • If you deny any allegations, what do you say happened instead? • Where were you on certain dates stated in the application? • Do you have any evidence? (voicemail messages, letters, diary notes)

22. Cross examination • Respondent used to be able to cross examine the AFM. • Now, in circumstances where cross examination is likely, the respondent must have legal representation (s70) • If the respondent refuses the representation, the court must warn the respondent that the respondents’ case may not proceed • The protected person can consent to be cross examined • Court can make order that VLA grant aid to each party (s71)

23. How can an order be made against me? • If the Court decides on the balance of probabilities that the aggrieved family member requires protection against you • If you agree to the order without admitting any allegations (“order without admissions”) • If you agree to the order

24. What conditions can be ordered? • broad • Duration of order can vary depending upon each case • If the respondent is a child, the order can not last for longer than 12 months Can include: • ‘exclusion’ or ‘ouster’ orders • Counselling or anger management courses • discretionary

25. Respondents removal from the home • Generally referred to as ‘exclusion conditions’ or ‘ouster orders’ • If a family violence intervention order has been made, the Court must consider excluding the respondent from the PP’s home • Different conditions apply if the respondent is a child

26. Also • In the event that a respondent is removed from the home, the protected person has the ability to apply to VCAT to have the existing tenancy agreement terminated and a new one created between herself and the landlord.

27. Varying, revoking extending or appealing • Respondent can only vary or revoke with the court’s leave • Appeals are to the County or Supreme Court- hearing de novo • Change in circumstances

28. If the orders are breached • Criminal offence • Police must be informed • Max penalty- 2 years imprisonment of up to $15,000 fine

29. Stalking Intervention Orders • Civil test • Used for non-family violence relationships • Similar process to FV IVOs • Stalking is: • If the first person engages in a course of conduct with the intention of causing physical or mental harm to the second person, or of arousing apprehension or fear in the second person for his/her own safety or that of another person.

30. Criminal jurisdiction • For both types of orders, criminal proceedings in the same matter can be heard concurrently. • Even if the criminal charges are not proven, the IVOs can still apply due to standard of tests.

31. Thank you! • Any questions? • Belinda Lo Fitzroy Legal Service blo@fitzroy-legal.org.au Tel: 9419 3744