Article

What is Family Violence?

Family Violence has a very broad definition under the Family Violence Protection Act (Victoria) 2008 (“the Act”). It is defined as:

Behaviour by a person towards a family member of that person if that behaviour:

• is physically or sexually abusive; or
• is emotionally or psychologically abusive; or
• is economically abusive; or
• is threatening; or
• is coercive; or
• 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 or another person; or
• behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to above.

A Family Violence Intervention Order (FVIO) helps protect you from family violence perpetrated by a family member, which can include but is not limited to, a spouse, a person who you have been in an intimate relationship with, a relative, a child who regularly resides with you, or a child of a person who has, or has had, an intimate personal relationship with you.

Have I experienced family violence?

Often, when we ask clients about whether they have experienced family violence in their relationship, they answer, “No, they never hit me”. However, as you can see from the definition of Family Violence under the Act, it is far more than physical violence.

Family violence between a couple or a separated couple can also affect children who are living in the home and have been exposed to Family violence.

Examples of family violence include:

• using coercion, threats, physical abuse or emotional or psychological abuse to cause or attempt to cause a person to enter into a marriage;
• using coercion, threats, physical abuse or emotional or psychological abuse to demand or receive dowry, either before or after a marriage;
• repeated derogatory taunts, including racial taunts;
• threatening to disclose a person's sexual orientation to the person's friends or family against the person's wishes;
• threatening to withhold a person's medication;
• preventing a person from making or keeping connections with the person's family, friends or culture, including cultural or spiritual ceremonies or practices, or preventing the person from expressing the person's cultural identity;
• threatening to commit suicide or self-harm with the intention of tormenting or intimidating a family member, or threatening the death or injury of another person.
• coercing a person to relinquish control over assets and income;
• removing or keeping a family member's property without permission, or threatening to do so;
• disposing of property owned by a person, or owned jointly with a person, against the person's wishes and without lawful excuse.

The following behaviour may constitute a child hearing, witnessing or otherwise being exposed to the effects of behaviour referred to above.

• overhearing threats of physical abuse by one family member towards another family member.
• seeing or hearing an assault of a family member by another family member.
• comforting or providing assistance to a family member who has been physically abused by another family member.
• cleaning up a site after a family member has intentionally damaged another family member's property.

When is family violence likely to occur?

Most incidents of family violence are unreported. It is therefore difficult to determine what the underlying causes of family violence are, and when it is likely to occur. However, risk factors can include mental health issues, drug and alcohol abuse, financial stress, relationship issues and impending separation and in the time immediately after separation has occurred.

As family violence can increase in the lead up to separation, and may escalate after separation, it is important to determine whether you need to take steps to protect yourself and the children prior to separating from your partner.

How do I apply for a Family Violence Intervention Order?

If you are concerned for your safety and/or the safety of your children, we recommend that you attend at your local police station to report your concerns. If the Police believe that you and/or the children require protection, they will make an Application to the Magistrates’ Court for a Family Violence Intervention Order. An Application and Summons will be issued.

The Court has the power to make an Interim FVIO (meaning a short-term order) that will last until the Court makes a Final order, or the matter is struck out by the Court or withdrawn. A Court date is set, and the Police will serve the Application and if applicable, Interim FVIO on the Respondent. An Interim FVIO does not come into effect until it has been served on the Respondent by the Police.

What if the Police will not apply for a FVIO on my behalf?

If the Police cannot assist you, you can attend at your local Magistrates’ Court and make the application yourself, for you and/or the children. You will meet with a Family Violence Registrar and complete an Application for a FVIO. You will be required to appear before a Magistrate and set out the reasons why you are seeking a FVIO.

It may be in your best interests to seek legal advice prior to making the application to ensure that you present your best case and the appropriate evidence.

What if I need immediate protection?

If you and/or your children are experiencing family violence at home, call 000 immediately. The Police will attend and if they are concerned for your immediate welfare and/or the welfare of the children, they can issue a Family Violence Safety Notice (FVSN) which works in the same way as a FVIO. The Police will remove the perpetrator from the home almost immediately and the FVSN will be listed for hearing before a Magistrate, usually within less than 7 days.

What are the conditions of a FVIO?

The conditions of a FVIO can vary, and can be limited to one paragraph only, that is, to not commit family violence. Alternatively, the Order may be extensive and can also prohibit the Respondent from doing the following:

• Intentionally damaging property or threatening to do so.
• Attempting to locate, follow or keep you under surveillance.
• Going to or remaining within 200 metres of your home, your workplace or any other place you reside/work/study.
• Contacting or communicating with you by any means.
• Approaching or remaining within 5 metres of you.
• Posting on the internet or by any electronic means, any information about you.
• Getting another person to do anything that they cannot do under the FVIO.

The Order will generally also set out what the Respondent may do, but only if they do not commit family violence while doing so. These are known as exceptions and can include, contacting or communicating with you by letter, email or text message to negotiate child arrangements, or doing whatever is permitted by a Family Law Act Order, a Child Protection Order or a written agreement about child arrangements.

A FVIO issued in Victoria is nationally recognised and enforceable throughout Australia.

If you are experiencing family violence or think you might be, it is important to remember that you are not alone. There are a lot of support services available. Our team of Family Lawyers can assist you to understand your options, the process and to refer you to appropriate support services.