Australia: Police Applications – Family Violence Safety Notices and Interim Intervention Orders

We often deal with clients that have, within a very short period of time, been excluded from their former matrimonial home, without the ability to contact their children. It is important to seek the assistance of a lawyer when faced with family violence allegations, so that they can help you navigate the court process.

Police play a pivotal role in intervention order proceedings. A wide scope of powers is afforded to police attending reports of family violence incidents. Evidentiary rules in the criminal courts do not apply with the same force in the family violence jurisdiction. An affidavit by a police applicant, which can contain hearsay allegations made by the complainant, is sufficient evidence to obtain an intervention order on an interim basis.¹These applications can proceed without you being notified,² nor present – called ex parte applications.

Knowing how and what to do when you are a respondent to a police application is integral to your success. Success can mean different things for our clients – whether this is agreeing to a full non-contact final order without admissions at the outset, negotiating conditions that allow you to continue with pre-existing arrangements (i.e. for business relationships between ex-partners to continue/permit suitable co-parenting arrangements); or contesting the allegations in court calling upon witnesses at a contested hearing.

Family Violence Safety Notices

Where police are called in following a report by a complainant, they have the power to issue family violence safety notices³ – which are de facto (in effect) interim intervention orders that do not require the police nor the complainant to attend court to give evidence. A safety notice may contain any of the conditions specified in section 81(2)(a)-(f) the Family Violence Protection Act 2004, including prohibiting family violence; excluding the respondent from the affected family member's residence; directing the respondent to return property; prohibiting the respondent from contacting the affected family member, being near a particular address or inducing others to engage in prohibited conduct.

Family violence safety notices are often issued upon request by phone or electronic means while the police are attending to the family violence incident. Breaches of family violence safety notices can result in criminal charges, arrest, and carry similar penalties to interim intervention orders.

A safety notice can contain a condition that you must leave the household immediately. When issued with a safety notice, you will be required to attend court within 72 hours of issue. The police will then seek to convert this to an interim non-contact order (a full order with specification of all available conditions). The police can do so against the complainant's wishes. The complainant/ affected family member is not required to give evidence by oath or affidavit and cannot be brought to court for cross-examination.

It is a common misunderstanding that it is only the complainant / affected family member themselves who are seeking the intervention order. Many applications are brought by Police on behalf of a complainant / affected family member whereby that person becomes protected and a witness but is not in control of the application itself. In addition to police applicants, the Court on its own initiative, can make an interim order where the Court deems this necessary for the protection of a family member which has the effect of removing a person from the family home. The Magistrate can also refuse to allow the police to withdraw an application. If you are a respondent, it is very difficult for you to change an order without the consent of the applicant, verbally or in writing. However, police do not need consent of the affected family member to apply to vary an order to add limited conditions.⁴

Your Matter

It is important to understand the flow-on effects of a family violence safety notice or interim family violence intervention order being taken out against you. The consequences are serious due to the restrictions placed upon you as the respondent and the potential for criminal charges to be laid if there are allegations of breach intervention order as well as criminal charges for the conduct which led to the application for the intervention order.

It is therefore crucial to speak with a lawyer who specialises in this area to gain an understanding of how best to manage your particular situation.

Footnotes

¹Family Violence Protection Act 2008 (Vic), s 43.
² FVPA, s 54.
³ FVPA, Division II.
⁴ FVPA, s 110.