In some family disputes, the first involvement of any court is as a result of one party applying for a family violence intervention order against their partner or former partner.
When this occurs, it can have a significant impact on the family dynamic, particularly when there are children involved.
The purpose of the Family Violence Protection Act 2008 (Vic) (FVPA) is to:
- Maximise safety for children and adults who have experienced family violence.
- Prevent and reduce family violence.
- Promote accountability of perpetrators of family violence for their actions.
As intervention orders are civil orders, the burden of proof is lower than it is in criminal cases.
In making an intervention order, the court must be satisfied of two factors on the balance of probabilities:
- That family violence has occurred.
- That family violence is likely to occur again.
Given the need, in some cases, for an applicant to have the immediate protection of an intervention order, the court has the power to make interim intervention orders.
Interim intervention orders can be made by the Court after considering written or oral evidence, and in some cases, without any evidence at all.
The court has the power to make an interim intervention order in the absence of the respondent. There is no requirement that the respondent be served with the application before an interim intervention order is made.
The conditions listed on an intervention order are enforceable once the respondent has been served.
If a respondent breaches the conditions of an intervention order, they have committed an offence, and they could be charged by police.
Interim intervention orders usually remain in place until a final hearing and the respondent must comply with the conditions of the interim intervention order for this entire period before the court considers whether a final intervention order should be made.
While the FVPA is focused on protection from, and prevention of family violence, the Family Law Act 1975 (Cth) (FLA) prioritises the best interests of children above all other considerations.
Section 60CC of the FLA provides that in determining what is in the child’s best interests, the court must consider:
- The benefit to the child of having a meaningful relationship with both of the child’s parents.
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Because a primary consideration of the FLA is ensuring that a child has a meaningful relationship with both of their parents, this can lead to inconsistencies between intervention orders and parenting orders. This is most relevant where children are listed as protected persons on an intervention order preventing them from spending time or communicating with the parent who is a respondent, but parenting orders under the FLA are made which provide for the children to spend time and communicate with the respondent.
To deal with the uncertainty that can arise due to this inconsistency, most intervention orders include an exception that the respondent can do anything that is permitted under a family law order. In other words, the FLA parenting orders override the conditions of the intervention order to the point of the inconsistency.
Even if this exception is not specifically listed on an intervention order, the terms of the intervention order are still invalid to the extent that those terms are inconsistent with FLA parenting orders. This is because intervention orders are made under state jurisdiction and FLA orders are made under federal jurisdiction. Where there is an existing intervention order, a court making an order under the FLA has an obligation to specify in the order if it is inconsistent with an existing intervention order.
While the FVPA and the FLA have differing purposes, both pieces of legislation highlight the importance of protection from family violence. The Family Law Amendment Bill 2023, due to become operative on 6 May 2024 will further emphasise family violence as a key consideration in determining the best interests of children in parenting matters under the FLA.
Parenting disputes, particularly those involving allegations of family violence are often complex and always require a careful and considered approach, with advice tailored to a person’s unique set of circumstances.
If you require assistance with a parenting matter involving family violence or intervention orders, please call us on 03 8672 5222 to make an appointment with one of our experienced family lawyers.
