The existence of Family Violence Intervention Orders (‘FVIO’) in the context of family law are becoming increasingly frequent. It is not uncommon in our practice for people to seek family law advice while also having a related FVIO in place against them.
Most commonly, FVIO applications are brought to the attention of people once they have been served with an application by a Police Officer. This can be a daunting experience. If you have found yourself in this situation however, there is no need to panic.
What is a FVIO?
A FVIO is an order which is made by the Magistrates Court of Victoria for the purposes of protecting a certain family member from the potential of family violence being committed against them. A FVIO restrains an individual family member from doing certain things, such as contacting, following or committing family violence against the family member being protected. A FVIO can be made either on a temporary (interim) or final basis. An Interim Order will expire or be discharged at a further court hearing whereas a Final Order will remain in place until its specified expiry date.
Have I been charged with a crime?
It is important to note that a FVIO is not the same as criminal charges being filed against you. An Intervention Order is a matter of civil law. A FVIO is an order which restrains you from doing certain things. Although you may also be separately charged with a crime in relation to the same incident, simply having a FVIO does not mean that you are being charged with a crime on the basis of the statements outlined in the documents you have been handed. What is important to note however, is that you may be charged with a crime if you later breach the Intervention Order which you have been served with.
Is it possible that I am also being charged with a crime?
Yes. It is possible that the Police served you with a FVIO and a Police Charge Sheet & Summons. If this is the case, you are also being charged with a crime and should immediately seek advice from a criminal lawyer.
How can I understand the documents I have been served with?
If you have been served with documents relating to a FVIO, these are a few tips to help you understand the documents that have been handed to you:
- Read the Headings: When someone applies for a FVIO, they are usually handed an ‘Application and Summons for an Intervention Order’ and possibly an ‘Interim Intervention Order’ or ‘Family Violence Safety Notice’. The Application and Summons for an Intervention Order should provide you with a court date for when your matter will be heard. This document will detail the allegations against you. In most cases, the person who has sought the FVIO against you will also have obtained an Interim Intervention Order. An Interim Intervention Order or Family Violence Safety Notice operates such that a FVIO is in place immediately for an individual’s protection while you wait for the upcoming court hearing. If you are handed documents with these headings, the FVIO is already in place and you may be charged with a crime if you breach it. If however, you are only handed an Application and Summons for an Intervention Order without an order alongside it, a FVIO is not yet in place. We recommend confirming this with the Police Officer who served you with the documents and seek legal advice immediately if you have been served with any FVIO documents.
- Applicant: A FVIO can be applied for by the individual allegedly needing protection, their parent/guardian or by a Police Officer. On the FVIO documents you have been handed, the Applicant should be listed next to the heading ‘Who makes the application?’. The Applicant is the person who will make any decisions regarding whether a FVIO should be withdrawn, varied or extended. If the Applicant is a Police Officer, you can contact them to discuss the matter. If the Applicant is the person allegedly needing protection, you may not be allowed to contact them directly.
- Affected Family Members: The individual allegedly needing protection is listed in the FVIO documents as the ‘Affected Family Member’ or next to ‘Who needs the order?’. This is the person who the orders apply to. Please read all of the documents, because there can be multiple people listed as Affected Family Members.
- Terms: The terms of a FVIO are not standard and can vary. They should be numbered and listed on the documents you have been served with. We recommend that you read them carefully to confirm what you can and can’t do.
- Exceptions: It is important to note that there can be a number of exceptions which are listed at the bottom of a FVIO. Common exceptions allow people to do anything permitted by the Family Law Act or a court order, to negotiate child arrangements or to communicate through a lawyer or mediator. These exceptions can be critical in the context of family law matters.
If my child is listed as an Affected Family Member on the FVIO, does this mean I cannot see my child again?
No, not necessarily. The interaction between FVIO’s and family law is complex, but there can be exceptions to the Intervention Order which allow you to still spend time with your child. If the FVIO does prevent you from seeing your child, you may need to make an application to the Federal Circuit and Family Court of Australia.
The documents provide a court date and time. What will happen at this court date?
In the FVIO documents which you have been handed, you will be given a date at which you are required to attend the Magistrates Court. This first Hearing is called a Mention. The purpose of a Mention is to determine if you wish to object to the FVIO. At the Mention, you will be given the option of consenting to the FVIO, consenting to the FVIO while not admitting the facts outlined in the application or contesting the FVIO. If you consent, the matter will be dealt with on the day and a final FVIO will be in place. If you contest the FVIO, there will be a number of subsequent hearings, including a Directions Hearing and Final Hearing to determine the application and whether a FVIO is necessary to protect the Affected Family Members. If the Applicant agrees, you can also enter into an undertaking. An undertaking is a promise to the court that you will not do certain things. If you breach your undertaking, the Applicant can take their FVIO application back to the court, but you will not be charged with a crime at that stage.
What should I do if I have been served with a FVIO?
If you have been served with a FVIO in the context of family law, do not panic. We recommend seeking legal advice immediately and well in advance of your Mention.
If you intend to consent, it is important to note that the conditions of your FVIO are not set in stone. You may be able to negotiate with the Applicant prior to the court date with respect to the terms of the FVIO, for your child to be removed as an Affected Family Member or to include exceptions.
We have a range of family lawyers who have significant expertise and experience in these matters. Our lawyers can assist or represent you in relation to your intervention order proceedings, whilst also managing the overlap with the underlying family law matters. If you have been served with a FVIO, we recommend that you make an appointment with one of our family lawyers as soon as possible. We offer a free initial appointment to all new family law and FVIO clients.
