Intervention order proceedings move quickly and carry real consequences for both sides — for safety on one hand, and for where a person may live, whom they may contact and what they may hold on the other. This guide sets out the framework neutrally, for people seeking protection and for people responding to an application.
FVIO or PSIO, and the terminology
Which Act applies depends on the relationship. The Family Violence Protection Act applies where the parties are family members as defined in that Act, which extends well beyond spouses to include relatives, intimate personal relationships, and certain carers and people treated like family. The person to be protected is the affected family member before an order is made and the protected person afterwards; the other party is the respondent.
Family violence under that Act includes physical, sexual, emotional, psychological and economic abuse, threatening or coercive behaviour, behaviour that in any other way controls or dominates a family member and causes fear for their safety or wellbeing, and behaviour causing a child to hear, witness or be exposed to such behaviour (section 5).
The Personal Safety Intervention Orders Act covers non-family situations and is directed at prohibited behaviour — assault, sexual assault, harassment, property damage or interference, serious threats, and stalking (section 5).
Family violence safety notices
Outside court hours, police may issue a family violence safety notice where certain requirements are met. A safety notice operates as an application to the court and takes effect once served on the respondent, with conditions that bind immediately until the court deals with the matter at the first hearing. It is a short-term protective step, not a final determination.
Who can apply
A police officer may apply for a family violence intervention order, and so may the affected family member. Applications may also be made by others in the circumstances the Act allows, including a parent or guardian in the case of a child and a person with written consent of the affected family member (section 45). Where police apply, they conduct the proceeding and the affected family member is not the applicant.
PSIO applications are commonly brought by the affected person directly, and may be brought by police in the circumstances the Act permits.
Interim orders
The court may make an interim order before the application is finally decided. Under the family violence legislation an interim order may be made where the court is satisfied, on the balance of probabilities, that it is necessary pending a final decision to ensure the safety of the affected family member, to preserve their property, or to protect a child (section 53). Interim orders can be made in the respondent’s absence, and the respondent then has the opportunity to be heard at the next hearing.
Service, and when conditions bind
An order does not bind a respondent who does not know about it. Conditions take effect once the order has been served on the respondent, or the respondent has been told of its existence and conditions in the way the legislation allows. Respondents should read the order itself rather than rely on what they were told, because the conditions are specific and are enforced as written.
The first mention, and the options
At the first mention the matter may be adjourned, an interim order may be made or continued, or the application may be resolved. The practical options are usually:
- Consent without admissions. A respondent may consent to a final order without admitting the allegations. Under the family violence legislation the court may make a final order with the respondent’s consent, with or without admission as to the truth of any of the grounds. The order is a full order with the same effect and the same consequences for breach as an order made after a contested hearing.
- An undertaking. In some PSIO matters, and less commonly in family violence matters, an applicant may accept a written undertaking from the respondent about future behaviour and withdraw the application. An undertaking is a promise to the court and is not an intervention order: it is not enforced as an order, and breaching it is not the criminal offence that breaching an order is. That distinction matters, and it is the reason undertakings are not accepted in every case.
- A contested hearing. The application proceeds to hearing, with evidence, and the court decides.
The test at a contested hearing
For a final family violence intervention order the court must be satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again (section 74). For a final personal safety intervention order the court must be satisfied on the balance of probabilities that the respondent has committed prohibited behaviour and is likely to continue or repeat it, or has stalked the affected person and is likely to continue or do so again, and that the respondent and affected person are not family members (section 61). These are civil standards; the criminal standard does not apply.
Conditions and exclusion from a home
Conditions are tailored to the risk. They may prohibit committing family violence, contacting or approaching the protected person, attending a residence, workplace or school, publishing material about the protected person, or getting another person to do those things. Contact may be allowed for specified purposes, such as arrangements for children through a lawyer or a third party.
The court may include a condition excluding the respondent from the protected person’s residence, including where the respondent has a legal or equitable interest in it. Before doing so the court must consider the matters the Act sets out, including the desirability of minimising disruption to the protected person and any children and the importance of maintaining social networks and support (section 82). Exclusion is a significant step and is argued on evidence.
Interaction with parenting arrangements
Intervention orders and parenting orders operate together and should be read together. Where children spend time with both parents, the conditions need to permit whatever contact the parenting arrangement requires, or the two documents will conflict in practice. A family law court must be informed of family violence orders affecting a child or a member of the child’s family, and a Victorian court dealing with an intervention order has power in defined circumstances to consider existing family law orders. Where both are on foot, tell each court about the other and seek advice on the sequence.
Firearms and licensing
Both Acts have consequences for firearms. An order may include conditions about firearms and weapons, and the legislation and the Firearms Act 1996 (Vic) affect the holding of a firearms licence and the possession, carriage and use of firearms by a person subject to an order. Because the effect depends on the type of order, its conditions and the licence held, anyone who holds a firearms licence, or whose work depends on one, should obtain specific advice promptly rather than assume the position.
An order may also have practical consequences for other occupational registrations and for working with children checks. Those consequences are not automatic in every case and should be assessed individually.
Variation, extension and revocation
Orders are not immutable. A protected person, a respondent or police may apply to vary, extend or revoke an order in the circumstances the legislation allows, and the court decides on the material before it. A respondent seeking a variation should apply rather than act on an informal agreement.
Breach is a criminal offence
Contravening an intervention order is a separate criminal offence, prosecuted in the criminal jurisdiction, with penalties that can include imprisonment. Two points are frequently misunderstood.
First, a protected person cannot give permission for the order to be breached. Under the family violence legislation, a protected person cannot be prosecuted for aiding, abetting, counselling or procuring a contravention of the order made for their protection (section 125). The obligation rests on the respondent alone, and an invitation from the protected person is no answer to a charge.
Second, an intervention order is not a criminal conviction and does not appear as one; a conviction for breaching an order is a criminal matter and does. If the conditions no longer suit the circumstances, the answer is an application to vary, not a departure from the order.
Practical points
- If you are in immediate danger, call 000.
- Read the order carefully and keep a copy; the conditions are enforced as written.
- Keep a dated record of relevant incidents, messages and communications, and bring it to court.
- Obtain advice before consenting to a final order, particularly where a firearms licence, employment, or occupancy of the home is affected.
- Where children are involved, address the parenting arrangement and the conditions together.
How we can help
Holt & Macdonald acts in family violence and personal safety intervention order matters in the Magistrates’ Court, for affected persons seeking protection and for respondents answering an application. We advise on conditions and their practical effect, on consent without admissions and undertakings, on applications to vary or extend an order, and on how an order interacts with parenting arrangements and with any related criminal charge.
