There are many factors to consider when weighing up whether or not to contest an application for a Family Violence, or Personal Safety Intervention Order in Victoria, Australia. The content contained in this article does not constitute legal advice, and serves as a starting point for discussion with a suitably qualified lawyer only.
The Limitations of What Can Be Achiever on the First Return/Mention
There will inevitably be disputation about the contents of an application for an intervention order – family violence or personal safety. A respondent to a intervention order will have an expectation that they will have an opportunity to “give their side” and that the AFM or protected person has lied.
It is important to note that the first mention of the hearing of the application/safety notice is not the substantive hearing and is more procedural in nature although there will be some attempt by the Court to encourage the parties to settle.
A contested intervention order proceeding will proceed through several court stages: a mention, then a direction hearing, and finally a contested hearing.
It is not until a case reaches the final stage, a contested hearing that a respondent will have an opportunity to present “their side of the story” and challenge the application.
How does a Court make a decision about whether to make an Order under the Family Violence, and Personal Safety Intervention Order legislation in Victoria, Australia?
Under section 74 of the Family Violence Protection Act (Vic) 2009, the Court will consider this 2-stage test in determining whether or not to make a Final Order:
Has there been an occasion of family violence.
Will there be a continuation of family violence unless a final order is made for an intervention order.
For Personal Safety Intervention Orders, the relevant test is set out under section 61 of the Personal Safety Intervention Order Act 2010 (Vic) and is in these terms:
The court may make a final order if the court is satisfied, on the balance of probabilities, that: (a) the respondent has (b) committed prohibited behaviour against the affected person and (c) is likely to continue to do so or do so again; and
the respondent's prohibited behaviour would cause a reasonable person to fear for his or her safety; or (a) stalked the affected person and is likely to continue to do so or do so again; and (b) the respondent and the affected person are not family members; and (c) it is appropriate in all the circumstances of the case to make a final order.
In either case, the evidence as to the legal tests described above are applied not on the criminal standard (beyond reasonable doubt) but the civil standard (balance of probabilities). In other words, is the alleged conduct more likely than not to amount to family violence. By reason of the civil test applied a finding of family violence or prohibited behaviour may be more easily made than as compared to the criminal standard of beyond reasonable doubt. Often, but not always the best pragmatic response may be to consent without admission to a Final Intervention Order.
An application for an Intervention Order may resolve in a variety of ways:
Revocation of an application
Withdrawal of an application
Undertaking not to commit family violence
Consent without admission to a Final IVO (no finding of family violence/prohibited behaviour) – ideally negotiating a limited order, or at least better conditions from the initial application
Final Order made (following application of the relevant test under either the Family Violence Protection Act or Personal Safety Intervention Order Act.
An application for an intervention order may take up to 12 months to reach a contested hearing.
Where a police application is unresolved, an interim order will often be made following interim court events, i.e. from mention to directions hearing, and from directions hearing to a contested hearing.
Consequently, an unsuccessful tilt at a contested hearing may result in an intervention order being in place (through a series of interim orders) for a period that is greater than what might otherwise be the case if the matter resolved at first mention.
Where appropriate, the benefit in consenting without admission to an Intervention Order on a final basis are:
In the case of a Family Violence Intervention Order, avoids any adverse finding of family violence having occurred, which won’t prejudice a respondent if contested parenting orders are the subject of litigation in the Family Court
In either jurisdiction (Personal Safety or Family Violence) it avoids the respondent giving evidence during a contested hearing which may support a criminal prosecution (contested intervention order proceedings are recorded).
In contested intervention order proceedings, the rules of evidence are less formal than for criminal proceedings.
Under section 65 of the Family Violence Protection Act, the Court “may inform itself in any way it thinks fit, despite any rules of evidence to the contrary”.
Section 47 of the Personal Safety Intervention Order Act is to the same effect.
In either family violence, or personal safety intervention order proceedings, uncorroborated evidence is common, and a court may more readily make a finding as to family violence, or prohibited behaviour (personal safety IVO) and make a relevant finding.
Sometimes it may be necessary to consider contesting an application for an intervention order so as to avoid the outcome of becoming a prohibited person under the Firearms Act.
Depending upon the nature of the respondent’s employment, perhaps it’s a rural setting where they need to control vermin, it can be a very important issue.
If a court intends to make a personal safety or family violence intervention order than provisions under each respective act (see sections 68 PSIO Act, and 94 FVP Act), then the Court must enquire as to whether the respondent:
Holds a firearms authority
Is a person with respect to whom a weapons exemption applies
Holds a weapon approval.
An Intervention Order that is final will result in a respondent being a prohibited person for the purposes of a firearms license under the Firearms Act.
Any condition pertaining on an application for an Intervention Order that bears upon a respondent’s firearms or firearms license will have the impact of them being declared a prohibited person for the length of the Order plus an additional period of 5 years: Stephensen v Lebessis [2014] VSC 498.
Where a Final Order does not contain a condition pertaining to firearms, then a respondent may make an application to be declared a non-prohibited person, and if that application is successful, they may have their firearms license reinstated: Pickford v Chief Commissioner of Police [2002] VSC 435; Clark v Chief Commissioner of Police [2010] VSC 144.
Where there is the prospect of criminal charges
An accused is not compellable in criminal proceedings, the hearing of an intervention should be dealt with only after the criminal charges are resolved – if this is not possible, consideration may need to be given to resolving the intervention order at the earliest opportunity, as accepting it on a without admissions basis preserves a respondent’s right to silence.
If the Intervention Order proceedings are finalised before the criminal case, a respondent runs the risk of enabling the prosecution to obtain a transcript of the intervention order proceedings. Moreover, if evidence was given at the IVO hearing, and also provided a comment record of interview, there may be multiple accounts provided which will not assist in the defence of criminal charges.
Conclusion
The desire a respondent has in either a family violence or personal safety intervention order case to have their say or otherwise set the record straight does need to be tempered with the realities of running a contested process with all the difficulties that may be attendant in the intervention order jurisdiction.
That said, having understood the difficulties inherent in the jurisdiction, there may of course be good reason to contest an application for an intervention order.
Obtaining comprehensive advice from a lawyer with experience in the intervention order jurisdiction is a must.
Have you been served with an intervention order in Victoria, Australia? Contact us for urgent advice. We consistently achieve the best results, regularly having charges downgraded or dropped. Pascoe Criminal Law offers a free initial case assessment, and fixed fees for representation at Court.
If you intend to secure the best outcome for your situation, simply call our criminal law office on (03) 9668 7600 or book an appointment through our website.
Level 8, 350 Collins Street Melbourne, Victoria 3000 Phone: (03) 9668 7600
32 Beetham Parade, Rosanna Victoria 3084 Phone: (03) 9668 7600