1. What is an intervention order?
In Victoria when an individual is in fear for their safety or well-being, or feels that they are being harassed or intimidated by another person, they can apply for and intervention order to restrain that person from continuing the offending behaviour.
Alternatively, if the affected person believes that the matter is urgent they can report the offending behaviour to Victoria Police, and if Police consider it necessary they will apply for an immediate order for the protection of the person. This immediate order is known as a Family Violence Safety Notice and has the same effect as an Intervention Order issued by the Magistrates Court.
2. What types of intervention orders are there?
There are really only two types of orders in Victoria and they are either family violence Intervention Orders, which usually involve people who are in a relationship or related to each other (for example, aunt and niece) and Personal Protection Orders which are orders made between people who are not in a relationship or otherwise related to each other.
Family violence intervention orders operate pursuant to the Family Violence Protection Act [2008]. Personal safety intervention orders operate in accordance with the Personal Safety Intervention Order Act [2010]. Both of these types of orders are civil orders of the court, and are not criminal orders. Sometimes the offending behaviour that warrants either a family violence intervention order, or a personal safety intervention order, can be criminal in nature and in addition to an intervention order, the person responsible for that behaviour may be charged with a criminal offence.
3. How does an intervention order work?
Intervention orders are civil orders that are used to prevent the escalation of offending behaviour, or to provide a degree of safety and distance between individuals to limit or prevent the risk of future harm.
While the making of an intervention order against an individual is a civil order, if that individual is alleged to have breached that order, then that alleged breach is a criminal offence and the individual can be charged by Police.
There are two stages of intervention orders. Interim Orders which if granted will remain in place until the application is finalised, and Final Orders that the final order and will remain in place until varied, revoked, or expire at the end of the term of the order.
4. How long does an intervention order last
Interim Orders remain in place until the application is finalised, or the applicant withdraws their application. Once a matter is finalised a Final Order is issued. In most cases Final Orders remain in place for a period of 12 months. However, depending on the nature and severity of the allegations along order may be necessary. If the parties are unable to agree about the duration of a Final Order, the Court has the power to specify the period of the Final Order taking into consideration the safety of the protected person, an assessment of the level and duration of risk from the respondent, and the views of the protected person.
5. What is the difference between family violence intervention orders (ivo), personal safety intervention orders (psivo) and restraining orders?
There is very little difference in the operation of the different types of intervention orders, other than who the different orders can apply to. In different states and territories these orders may be known as apprehended violence orders or personal protection orders, but whatever the name the purpose and intention of the orders is to provide protection to an individual who is at risk of harm.
The operation of a family violence intervention order is the same as that for a personal safety intervention order. Both types of orders will require a court, usually a magistrates Court, making an order that restrains an individual, referred to as the respondent or defendant, from engaging in conduct which is considered to be family violence, or some other sort of prohibited behaviour against a person (or persons), referred to as an affected family member, or a protected person.
Family violence intervention orders are orders that involve family members. The definition of family members is broad and in addition to a husband, wife or spouse, also includes siblings, relatives (such as aunts, uncles, cousins, nieces and nephews), family members by marriage, previous spouses and their families, and anyone else who would be a relative if the domestic partners were married to each other.
Personal safety intervention orders are orders that involve persons other than family members. These might include neighbours, work colleagues, friends and even strangers. Despite the difference in the names of the orders, the effect of their operation is the same.
The test for whether a family violence intervention order is necessary is a subjective test. That means an order is considered necessary if the affected family member genuinely feels fear for their safety or well-being, regardless of the intention behind the respondent’s behaviour. The test for a personal safety order is an objective test. The objective test considers whether a reasonable person would think the respondent’s behaviour was such that an order was required to protect the person whom behaviour was directed. The objective test for a personal safety intervention order has a higher threshold than the subjective test for a family violence intervention order. The reason for this is to prevent individuals who are not related to each other taking out vexatious or frivolous orders against each other.
6. How to apply for an intervention order
If an individual requires the protection of an intervention order, be it for family violence or personal safety, they would attend at their local magistrates Court and make an application in person to the registrar of the court. Since Covid restrictions have arisen most applications are now done online via the magistrates Court of Victoria website. If however the matter is urgent, and the person requires immediate protection, they can attend their local police station and request that the police make an application on their behalf.
If an application is made by Victoria police a family violence safety notice will be issued immediately, and will have immediate effect. The family violence safety notice operates in the same way that an intervention order operates, the difference being however that it is not an order of the court. It is however enforceable by Victoria police, and carries similar penalties if the notice is breached.
If an individual makes an application via the court’s website, or in person at a magistrates Court, it will be considered by a registrar of the court. If the registrar believes the application warrants immediate protection an interim order will be granted. Victoria police will be directed to serve that interim intervention order on the respondent, at which time the order will have immediate effect.
If the registrar does not believe the application is urgent the application will be listed before a magistrate, usually within one to two weeks, and the applicant will have the opportunity to explain to the magistrate why they need the order to protect them.
Once the application has been considered the matter will be listed for a mention hearing before a magistrate where both the applicant and respondent will be present, usually with the assistance of a legal representative, and the merits of the order are considered and negotiated.
7. Can an intervention order be varied or revoked?
Once an Interim or Final Order is in place the conditions of the order remain unless the order is varied or revoked. Either of the respondent or the affected family member can apply to vary or revoke the intervention order.
When considering an application for variation or revocation the Court will consider a number of factors including the reasons for seeking the variation or revocation, the safety of the protected person, the protected person’s views about the variation or revocation, and whether or not the protected person is legally represented and receiving independent advice about the proposed variation or revocation.
If the proposed variation or revocation is opposed by the applicant or the protected person then the order will remain in place and the application will be considered at a contest hearing.
8. How do you enforce a FVIVO or PSIVO?
A family violence intervention order or a personal safety intervention order is an order of the court and a breach of its terms or conditions may constitute a criminal offence. If there is an intervention order in place and it is alleged that the respondent has breached the conditions of that order, the affected family member or protected person should will report the matter to Police. The police will conduct an investigation into the allegations to determine whether it is necessary and appropriate to lay charges as a result of the allegations.
Intervention Orders result from civil proceedings between the parties and the burden of proof in these matters is “on the balance of probabilities”. However as a breach of an intervention order is a criminal offence, the burden of proof required to be met to establish whether the crime has been committed is “beyond a reasonable doubt”. It is therefore very important that any alleged breach is well documented and reported to the police with any evidence to support the allegation. While not every allegation of breach has sufficient evidence to warrant charges, it is still important to record and report each allegation, as the cumulative effect of these can be important if an extension or variation to the intervention order is sought in the future.
9. What happens if you breach an intervention order?
When an allegation of breach is made Police will generally in contact the respondent for the purposes of an interview during which they will present the evidence they have to the respondent in support of their investigation. If charges are laid the Respondent will appear before a Magistrate and have to answer to those criminal charges. The penalties for breach of an intervention order can include jail time depending on the severity of the breach.
If you have been requested to attend an interview with Victoria Police in relation to an alleged breach of an intervention order, or you have been charged with breach of an intervention order, you should immediately seek advice from a criminal lawyer.
10. What does a FVIVO or PSIVO mean for my firearm licence?
If an Interim or Final FVIVO or PSIVO is made against you, your firearms licence will be automatically suspended.
If your firearms licence has been suspended or revoked, you must immediately surrender your firearms and licence to the police. If you don’t, police may seize your firearms and charge you with an offence. If your Intervention Order has an order that prohibits you from possessing a firearm, you may be charged with breaching the Order, which is a criminal offence.
If a Final Order is made against you, your firearms will have to be disposed of or destroyed. You can ask the police to dispose of your firearms with a firearms dealer or you can ask the police to destroy them. If you do nothing, the police will destroy your firearms.
As a result of a Final Order a person will be automatically banned from holding a firearm licence for a period of 5 years. Once this period expires the person may apply to the Licensing and Regulation Division of Victoria Police for a declaration to be deemed a non-prohibited person and therefore be eligible to re-apply for a firearm licence.
11. Does an intervention order appear on a police check?
It is important to note that Intervention Orders are civil matters, and not criminal matters. Sometimes Victoria Police apply for an Intervention Order on behalf of a protected person, but this does not make it a criminal matter.
The existence of a Final Intervention Order does not mean that the respondent has a criminal record or has committed any crime. Therefore an intervention order will not show up on a police check or criminal record. However, if you have been charged with breach of an Intervention Order, that charge will show up on a Police check regardless of whether the charges dismissed or successful.
12. What does a fvivo mean for a working with childrens check (wcc)?
A person who works or volunteers in child-related work will need to apply to the Department of Fairness, Families and Housing for a Working With Children Check. This involves a national criminal record check as well as other checks.
As a result of a Working With Children Check a person will be cleared to work with children for five years or barred from working with children. There is on-going monitoring for new records during the five years.
Usually having a FVIVO or PSIVO will not stop you being cleared to work with children, but it is possible in some cases that such Orders may be considered in an application or review of eligibility of an existing Working With Children Check.
Links
Magistrates’ Court of Victoria – Homepage | Magistrates Court of Victoria (mcv.vic.gov.au)
Services Victoria – Victorian Government Services Online | Service Victoria
VLA – Victoria Legal Aid | Helping Victorians with their legal problems.
