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Intervention Orders

Intervention Orders and Family Law Proceedings

Friday 1st of February 2019
By: Casey Ieraci & Justine Clark

The result was quite unexpectedly favourable given the other party's position.

Intervention Orders and Family Law Proceedings

Leo Cussen Centre for Law

Presented by Casey Ieraci & Justine Clark

Accredited Family Law Specialists

 

Context

Family Violence has been on the State and Federal Legislative Agenda in recent years, and particularly following the 2016 Victorian Royal Commission into Family Violence and the Family Law Council’s 2016 Final Report into Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems.

Recommendations 60 to 78 of the Victorian Royal Commission’s Report were directed to Court responses to family violence[1]. These recommendations focused on and were directed towards:

(a) the intersection between family violence proceedings and family law proceedings;

(b)  extending the powers of Magistrates to make Orders in intervention order proceedings of a “family law” nature; and

(c) the protection of vulnerable witnesses giving evidence in proceedings.

Recommendation 60, which was one of the primary recommendations directed towards Court responses, proposed that the Victorian Government ensure that the Magistrates’ Court of Victoria have family violence divisions with:[2]

 

“-    specialist magistrates, registrars, applicant and respondent workers to assist parties in applications for family violence intervention orders and any subsequent contravention proceedings

    dedicated police prosecutors and civil advocates
    facilities for access to specialist family violence service providers and legal representation for applicants and respondents
    power to make counselling orders under Part 5 of the Family Violence Protection Act 2008 (Vic)
    remote witness facilities for applicants
    the jurisdictional powers of the Family Violence Court Division under section 4I of the Magistrates’ Court Act 1989 (Vic), including the power to make parenting and property orders under the Family Law Act 1975 (Cth)”

Recommendation 67 proposed steps to ensure information sharing between the Magistrates’ Courts of Victoria and other relevant Courts (the Commonwealth Family Law Courts and the Children’s Court of Victoria), that:[3]

“The Magistrates’ Court of Victoria registry, in all police-initiated applications for family violence intervention orders, provide to the magistrate a summary indicating the status of any related proceedings in the Children’s Court of Victoria (or vice-versa), the Family Court of Australia and/or the Federal Circuit Court of Australia. If information is not available from other jurisdictions, this should be stated. In non-police-initiated family violence intervention orders, the Magistrates’ Court registry should also provide the information recommended to be provided by Victoria Police in an application initiated by it…”

Victorian State Parliament have amended Victorian State family violence legislation following the Royal Commission and Federal Parliament has made amendments to the Family Law Act 1975 (Cth) (“FLA”) which respond to these recommendations.[4] The Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth) took effect on 31 August 2018 and 1 September 2018. The Explanatory Memorandum to the Bill set out that the intention of the amendments was to introduce the following measures into the FLA:[5]

“6. Allowing parties to resolve related matters together in state and territory courts … [to] reduce time, cost, pressure and risk for vulnerable families and children. State and territory courts are not intended to become the primary fora for resolving family law disputes. Rather, these amendments are intended to provide state and territory judicial officers with additional tools to resolve matters involving family violence holistically and prevent further violence by reducing the sometimes complicated legal processes.

 …

    The Bill would remove the 21 day time limit which applies to a family law order that is revived, varied or suspended by a state or territory court when making an interim family violence order. This amendment would allow the state or territory court to specify in the order a specific expiration, or that the revival, variation or suspension will expire when the interim family violence order expires, or when a court makes an alternative order. This is intended to avoid inconsistencies between family violence orders and family law orders, which can lead to confusion and increased risk for victims.
    The Bill would strengthen and codify the power of the family law courts to dismiss unmeritorious cases and proceedings that are frivolous, vexatious or an abuse of process. This amendment would enable courts exercising family law jurisdiction to better protect victims of family violence from perpetrators who attempt to use the family law system as a tool of continued victimisation.
    The Bill would remove the requirement that a court must explain certain matters to a child, when it would not be in the child’s best interest to receive the explanation. The requirement applies when a court is making an order or injunction that is inconsistent with a family violence order. This amendment would ensure that the information children receive from a court is appropriate and would not expose them to further details of family violence.”

The Victoria Police in response to the recommendations of the Royal Commission have implemented a Strategy for 2018-2023 entitled ‘Policing Harm, Upholding the Right: Victoria Police Strategy for Family Violence, Sexual Offences and Child Abuse 2018-2023’ to strengthen police responses to family violence. In August 2017, the Victoria Police also established 38 new police lawyer roles to prosecute applications for family violence intervention orders in Magistrates’ Courts across Victoria.[6] Anecdotally, legal practitioners have reported Police more actively issuing Family Violence Safety Notices and bringing applications on behalf of affected family members following attendances at domestic disputes, complaints of family violence being made, and remaining involved in the prosecution of police applications (e.g. not withdrawing as applicant and remaining involved in the negotiation of interim and final orders, particularly in relation to the conditions included on Orders).

Following the Royal Commission, the landscape in relation to family violence has changed. In light of the amendments to the Family Violence Protection Act 2008 (Vic) (“FVPA”) and FLA, it is important that practitioners are able to properly advise clients about:

    When it is appropriate to apply for an intervention order;
    What alternatives exist to an application for an intervention order;
    How to apply for an intervention order (if required) and the differences that may arise in the conduct of police applications (as applicant on behalf of an affected family member) and applications instituted by the affected family member (as applicant);
    The risks, advantages and disadvantages of applying for an intervention order in the context of property and parenting proceedings before the Family Law Courts (meaning the Family Court and Federal Circuit Court); and
    How to defend an application for an intervention order, particularly if the application appears to be a litigation strategy (or in extreme cases an abuse of process), in the context of family law property and / or parenting disputes.

Whilst intervention order proceedings are often considered by practitioners to be straight forward and lacking in legally complexity, a comprehensive and technical knowledge of the FVPA, and how intervention order proceedings may intersect with family law proceedings, including an understanding of the relevant provisions in the FLA, is key to proficient practice.

What is family violence?

Family violence is defined slightly differently in the FVPA and the FLA.

The definition of family violence in section 4AB of the FLA is slightly broader than the definition in section 5 of the FVPA. However, the definitions encompass the same conduct.

It is important when advising clients to consider if the behaviour or conduct alleged:

(a)  constitutes “family violence” pursuant to either definition (considering the subjective test in both Acts); or

(b)  falls outside those definitions.

FVPA Definitions

Section 5 of the FVPA defines family violence as:

(1) For the purposes of this Act, family violence is—

(a) behaviour by a person towards a family member of that person if that behaviour—

(i) is physically or sexually abusive; or

            (ii)  is emotionally or psychologically abusive; or

(iii)  is economically abusive; or

(iv)  is threatening; or

(v)  is coercive; or

(vi)  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

(b)  behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a).

(2) Without limiting subsection (1), family violence includes the following behaviour—

(a)  assaulting or causing personal injury to a family member or threatening to do so;

(b)  sexually assaulting a family member or engaging in another form of sexually coercive behaviour or threatening to engage in such behaviour;

(c)  intentionally damaging a family member’s property, or threatening to do so;

(d)  unlawfully depriving a family member of the family member’s liberty, or threatening to do so;

(e)  causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the family member to whom the behaviour is directed so as to control, dominate or coerce the family member.

(3)  To remove doubt, it is declared that behaviour may constitute family violence even if the behaviour would not constitute a criminal offence.

The definition in section 5 of the FVPA (above) is broad and involves an objection and subjective limb.

It encompasses behaviour (physical, sexual, emotional, psychological or economic conduct) that is threatening or coercive or controls or dominates a family member and causes them to fear for their safety or wellbeing.

There are also extended definitions of economic abuse, and emotional and psychological abuse in the FVPA.

Emotional and psychological abuse is defined in section 7 of the FVPA as:

“For the purposes of this Act, emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person.

Examples—

    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.

The above definition includes racial abuse, threats of self-harm that are coercive, threats of harm to another, isolation or attempts to isolate a person from their family, friends or culture, and threats to ‘out’ affected family members who identify as LGBTIQ.

Economic abuse is very broadly defined in Section 6 FVPA as:

“For the purposes of this Act, economic abuse is behaviour by a person (the first person) that is coercive, deceptive or unreasonably controls another person (the second person), without the second person’s consent—

(a)     in a way that denies the second person the economic or financial autonomy the second person would have had but for that behaviour; or

(b)       by withholding or threatening to withhold the financial support necessary for meeting the reasonable living expenses of the second person or the second person’s child, if the second person is entirely or predominantly dependent on the first person for financial support to meet those living expenses.

Examples—

    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;
    Without lawful excuse, preventing a person from having access to joint financial assets for the purposes of meeting normal household expenses;
    Preventing a person from seeking or keeping employment;
    Coercing a person to claim social security payments;
    Coercing a person to sign a power of attorney that would enable the person’s finances to be managed by another person;
    Coercing a person to sign a contract for the purchase of goods or services;
    Coercing a person to sign a contract for the provision of finance, a loan or credit;
    Coercing a person to sign a contract of guarantee;
    Coercing a person to sign any legal document for the establishment or operation of a business.

The definition of economic abuse is very broad. This can pose difficulties in the context of family law property proceedings, which will be discussed later in this paper.

For example, what does ‘reasonable living expenses’ mean? What is ‘reasonable’ could mean vastly different standards of living for different families.

To bring an application for an intervention order the conduct amounting to family violence must be perpetrated against the Applicant / affected family member (or members) by a person who is defined in the FVPA (sections 8 to 10) as a:

    A family member;
    A domestic partner; or
    A relative.

These definitions are also broad and include:

    Spouses and former spouses;
    Domestic partners;
    Persons who are or who have been in an intimate personal relationship (whether or not sexual in nature);
    Relatives (including a relative within the meaning of aboriginal and Torres strait islander traditional or contemporary social practices);
    A child who normally or regularly resides with the applicant / affected family member or respondent;
    A child of a person of an intimate personal relationship;
    A person whom the applicant regards as being like a family member having regard to the circumstances of the relationship (i.e. A person’s carer), noting this requires consideration of the following factors set out in sub-section 8(3)(a) to (i):

(a)  the nature of the social and emotional ties between the relevant person and the other person;

 (b)  whether the relevant person and the other person live together or relate      together in a home environment;

(c)  the reputation of the relationship as being like family in the relevant person’s and the other person’s community;

(d)  the cultural recognition of the relationship as being like family in the relevant person’s or other person’s community;

(e)  the duration of the relationship between the relevant person and the other person and the frequency of contact;

(f)  any financial dependence or interdependence between the relevant person or other person;

(g)  any other form of dependence or interdependence between the relevant person and the other person;

(h)  the provision of any responsibility or care, whether paid or unpaid, between the relevant person and the other person;

(i)  the provision of sustenance or support between the relevant person and the other person.

 

The above definitions are expansive and encompass a large number of relationships which clients may not consider to be familial.

Family Law Act

The FLA defines Family Violence in section 4AB as:

“(1)  For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

(2)  Examples of behaviour that may constitute family violence include (but are not limited to):

(a) an assault; or

(b) a sexual assault or other sexually abusive behaviour; or

(c) stalking; or

(d) repeated derogatory taunts; or

(e) intentionally damaging or destroying property; or

(f) intentionally causing death or injury to an animal; or

(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h)  unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i)  preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j)  unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

(3)  For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

(4)  Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

(a)  overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

(b)  seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

(c)  comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

(d)  cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

(e)  being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

Consistent with the definition of Family Violence in the FVPA involves an objective assessment of the conduct – violent or threatening or other behaviour that coerces or controls a member of the person’s family – and then a subjective limb – or causes that family member to be fearful.

 

Addressing Family Violence & Responding to Allegations of Family Violence – Options

Process

A summary of the process is:

    An Application for an Intervention Order is made (by the police or by application to a Family Violence Registrar at a Magistrates Court) and a Mention date / First Return Hearing is listed;
    Alternatively, and prior to the making of an Interim Intervention Order, the Police may issue a Family Violence Safety Notice (see Division 2, sections 24 to 40 FVPA) which effectively has conditions similar to that of an Order pending the Mention date / First Return Hearing, but without the normal exceptions;
    At the Mention / First Return Hearing, directions for further and better particulars can be pressed and the Court will consider the conditions to be included on an Interim Order (if granted), (e.g. provisions relating to firearms and the surrender of firearms by the Respondent), what persons shall be listed as Affected Family Members (e.g. the inclusion of children on an Interim Order) and what exceptions should be included (e.g. provisions about communication between the parties regarding parenting matters, arrangements for the collection of personal property by the Respondent with Victoria Police present);
    At the Mention Hearing, the Court will consider what witnesses will be called at the Contest Hearing and what further Orders and directions are required to progress the Application to a final Contest Hearing (parties may consider what Subpoenas should be issued, and material sought to be produced (including police notes and records), in light of the allegations and further and better particulars filed, if any);
    At the Contest Hearing the Applicant / affected family member will give evidence and be cross examined (subject to the exceptions and limitations in the FVPA), together with any witnesses, and the Respondent will give evidence and be cross examined before the Magistrate determines if a Final Intervention Order is to be made, for what duration and with what conditions and exceptions.

Applicants

Some acts of Family Violence often include conduct that may give rise to criminal charges, this includes: cases of serious assault, sexual assault, damage to property or stalking. Therefore, thought needs to be given as to whether your client should first report these allegations to Victoria Police (the police).

If the police are satisfied that there are serious allegations, quite often they will make the Application on behalf of the affected family member(s). This means that the affected family member has the status of being a witness rather than an Applicant. In my experience, these Applications usually impact on negotiations and the conduct of the matter moving forward.  The added benefit of having the police make the Application on behalf of your client, means that your client does not need to incur the costs of obtaining legal representation or by having to prepare the case.

An Application for an Intervention Order can be made on an ex parte basis by written Application. Quite often, the Court Registry prepares these Applications.  The Application for an Intervention Order is generally listed in Court that day or shortly thereafter.  What is not well known is that a Court can also make such an Order without the requirement for oral evidence and can do so based on an Affidavit alone or can waive this requirement altogether and can make the Order based on an Application over the phone or by fax (see section 55(1)(b) and section 55(2) of the FVPA).

On an interim basis, the Court only needs to be satisfied that it needs to make an Order to protect the safety of an affected family member, property or a child.  To make a Final Order, the Court only needs to be satisfied, on the balance of probabilities, there has been Family Violence and such conduct is likely to continue if an Order is not made.  It is important to note here, that unlike criminal or Family Law proceedings, the rules of evidence do not apply under Applications made pursuant to the FVPA. The rules of evidence do not apply on an ex parte, Interim or at a Final Hearing.

It is important for legal practitioners to consider whether Family Law proceedings have been commenced or are likely to be commenced imminently. If the answer is yes, it may be prudent to consider whether the protection sought by your client can be granted under sections 68 or 114 of the FLA rather than through separate proceedings conducted in the Magistrates’ Court.

Respondents

More often than not, the first time your client learns of the Intervention Order proceedings is upon being contacted by the police and being served with the Interim Order that was made on an ex parte basis.  The matter is often returnable to Court within a short period of time.

As legal practitioners, we all know the difficulty of being able to discharge or vary an interim intervention order. If that is the case, the following steps should be taken:

    If the Application has been made by the affected family member, try to obtain a copy of the handwritten notes made by the Court Registry when preparing the Application. This can quite often be done by sending a letter to the Court staff. If no reply is received, seek an Order at the First Return Hearing for the production of those notes.
    If the Application contains statements such as “the Respondent has abused me for years” or “there have been countless acts of Family Violence during our marriage”, seek an Order at the First Return Hearing for further and better particulars and a Mention Hearing shortly thereafter.
    If the Interim Order lists the children as Affected Family Members or your client is restrained from having any contact with the Affected Family Members, ensure that the exceptions are such that:

    The Respondent can contact the other parent via email or letter in relation to parenting matters or arrange to attend a Mediation;
    There is an Order that the Respondent may do anything that he or she is permitted to do under a Family Law Order or written Agreement between the parties, so far as they relate to parenting matters.

    If parenting proceedings are on foot and a full Order without exceptions has been made, consider making an Application pursuant to Section 68P of the FLA which would mean the Respondent can spend time with and communicate with the child notwithstanding an inconsistent Order made pursuant to the FVPA. In making such an Application, the Court will have regard to the usual “best interest of the child” principles contained within Section 60CC of the FLA, that is a there is a presumption that it is in the best interests of the child or children to have a substantive and meaningful relationship with both of their parents, unless it is not safe to do so. In applying the presumption, the Court is to give greater weight the latter statement.
    Applications for Intervention Orders are often bought in circumstances where the affected family member is alleging economic abuse of some kind, coupled with examples where the Respondent has either verbally abused or denigrated the affected family member in the presence of or hearing of the children. If Family Law proceedings are on foot, and the circumstances of the case allow, legal practitioners should consider the following:

    Consenting to an Order pursuant to Section 68B that the parties be restrained from denigrating the other parent in the presence of or hearing of the children. Such an Order can be made with your client denying the necessity of such an Order;
    Consider consenting to an Order for sole occupation and use in the Family Court proceedings. In reality, if an Intervention Order is made excluding the Respondent from the home, your client really loses nothing by making this concession; and
    Whether appropriate financial support, through spousal maintenance or child support, can be negotiated and recorded in Orders made by the FCA or FCCA.

Note, this may not be grounds to vary the Interim Order, but if the Intervention Order Proceedings progress to a Final Hearing, in considering whether a Final Order should be made, the Magistrate has to be satisfied of two matters:

    There has been Family Violence; and
    Such conduct is likely to occur if an Order is not made.

If allegations of economic abuse have been addressed through Family Court of Orders in the FCA or FCCA, it is difficult to see how the Court can be satisfied on the second limb of the test.

 

The Appropriate Forum – The FLA and Sole Occupation and Use Applications

Anecdotally, countless cases for Intervention Orders are bought to the Magistrates’ Court in circumstances where, prior to separation, there were no allegations of Family Violence.  The end of a relationship is a stressful enough situation for a family. However, matters can often be exacerbated if the parties are separated under the one roof. There are generally two explanations for why this occurs:

    The parties are unable to raise funds / unwilling to release funds on an interim basis to allow the other party to set up a new residence; or
    Parenting matters are likely to be hotly contested and one party, such as the father, feels that moving out of the family home prior to parenting arrangements being agreed or Parenting Orders being made, will hinder any shared care application.

Intervention Orders can at times be viewed as the easier mechanism to obtain a sole occupation and to exclude the other spouse from the family home.  These Applications are often made where the Family Violence is situational and where the only Order that is required to protect the Affected Family Member(s), is an Order for the other spouse to leave the property. While Intervention Orders are often successful in achieving that aim, they quite often go further, particularly if a full order is made, and this in turn exacerbates the conflict between the parties.

In my own practice, I have seen several cases where my client has bought an Application for an Intervention Order, where she or he is the only listed Affected Family Member on the applications. However, by the time they have left an Interim hearing, the children have been listed as Affected Family Members subject to the “protection” of a full Order, with partial exceptions.  The reason for this is contained in Section 78(5) of the FVPA that states that a Court may refuse to make an Intervention Order that the parties have consented to, or in the manner proposed by the Applicant in her or his original Application,  if the Court believes that the proposed Order may pose a risk to the safety of one of the parties or a child of the protected person. It is important to remember here that the vast majority of Interim Intervention Orders are made on an ex parte basis and without an Affidavit. The evidence is therefore limited, and it is often difficult to vary an Order at other Interim Hearings, even as further evidence has come to light.

The above gives rise to an obvious question: where a simple Order for sole occupation and use will suffice, that is, stop the conduct alleged to have occurred, what message does it send to the child if they learn that their parent, the parent that no longer lives at their family home, is subject to an Intervention Order? Could a child not reasonably infer that a Court has assessed their parent as a danger to her or him? If the answer is yes, surely this can have significant implications on the relationship between the child and the non-resident parent?

As lawyers, no matter which party we act for, we need to turn our mind to the following:

    What are the allegations? Do they predate separation or occur post-separation?
    What protection does your client need?

If the protection required is simply to exclude one party from continuing to live at the family home, Intervention Orders should be avoided. There are other mechanisms, which can be used. For example:

    A proposal can be put, subject to the parties’ financial circumstances, that a sum of money be released to the other party to secure adequate and comparable accommodation. If the parties’ have children, the element of “comparable” accommodation becomes even more crucial to ensure that the children enjoy the same benefits and lifestyle in both homes. Note, when acting for the other party, a lawyer should turn their mind to what could eventuate if your client does not consent and continues to remain living in the family home. Is your client exposed to a potential Application for an Intervention Order? Have allegations of Family Violence already been made?
    If the parties do not have the financial means on an interim basis, can some type of arrangement be negotiated where both of the parties stay with family or friends for some part of the week, while the other parent stays in the home to care for the children on agreed days?
    If agreement cannot be reached, an Application for sole occupation and use should be made in either the Family Court or Federal Circuit Court.

Such an Application can either be made:

    Pursuant to section 68B of the FLA;
    Pursuant to section 114(1)(a) of the FLA so far as it relates to the “person protection” of the applicant.

Intersection with Family Law Proceedings, Powers, Inconsistencies and Evidence

Reporting

Subdivision D of Part VII of the FLA details how reports of and allegations of Child Abuse and Family Violence are addressed in parenting proceedings before the Family Law Courts.

This subdivision, and sections 67Z, 67ZBA, requires a person – an interested person – who may be a party to the proceedings, the Independent Children’s Lawyer (“ICL”) or a person prescribed in the regulations to file and serve on all parties to the proceedings a notice in the prescribed form setting out the Child Abuse / Family Violence or risk of Child Abuse / Family Violence which has occurred or is likely to occur.

Once this occurs the Court is required to take prompt action, and pursuant to section 67ZBB, the Court must consider as soon as practicable after the notice has been filed and as appropriate having regard to the circumstances of the case – but within 8 weeks:

 

“(a) consider what interim or procedural (if any) orders should be made:

 

(i) to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and

 

(ii)  protect the child or any of the parties to the proceedings; and

 

(b) make such orders of that kind as the Court considers appropriate; and

 

(c) deal with the issues raised by the allegation as expeditiously as possible.”

 

The Court must consider what Orders should be made under section 69ZW to obtain documents from State and Territory agencies in relation to the allegation(s) and consider whether Orders should be made, or an injunction granted under s 68B of the FLA.

Inconsistency and Powers

Division 11 of Part VII also relates to Family Violence and is directed to ensuring that Orders made in relation to children (Parenting Orders) and Family Violence Orders are not inconsistent.

Generally, Federal Orders (i.e. Parenting Orders) prevail over State Orders (i.e. intervention orders) to the extent of any inconsistency. Section 68Q of the FLA is directed to this and states:

 

“(1) To the extent to which:

(a)  an order or injunction mentioned in paragraph 68P(1)(a) is made or granted that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; and

(b)  the order or injunction is inconsistent with an existing family violence order;

the family violence order is invalid.”

Section 68P requires the Family Law Courts, in making a parenting Order that is inconsistent with an existing Intervention Order, to:

(2) The court must, to the extent to which the order or injunction provides for the child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child:

(a)  specify in the order or injunction that it is inconsistent with an existing family violence order; and

(b)  give a detailed explanation in the order or injunction of how the contact that it provides for is to take place; and

(c)  explain (or arrange for someone else to explain) the order or injunction to:

(i)  the applicant and respondent in the proceedings for the order or injunction; and

(ii)  the person against whom the family violence order is directed (if that person is not the applicant or respondent); and

(iii)  the person protected by the family violence order (if that person is not the applicant or respondent); and

(d)  include (or arrange to be included) in the explanation, in language those persons are likely to readily understand:

(i)  the purpose of the order or injunction; and

(ii)  the obligations created by the order or injunction, including how the contact that it provides for is to take place; and

(iii)  the consequences that may follow if a person fails to comply with the order or injunction; and

(iv)  the court’s reasons for making an order or granting an injunction that is inconsistent with a family violence order; and

(v)  the circumstances in which a person may apply for variation or revocation of the order or injunction.”

 

However, if the Court does not comply with section 68P above it does not render the Parenting Order that is inconsistent with the Intervention Order invalid.

Subsection 68P(3) requires the Family Law Court to provide a copy of the Order to the Registrar or Principal Officer or other appropriate officer of the Court that last made or varied the Intervention Order and the Commissioner of Police of the relevant State or Territory[7].

In addition, section 68R the FLA empowers a Court of State or Territory to revive, vary, discharge or suspend a Parenting Order (including a recovery order or injunction) or parenting plan to the extent that it provides for a child to spend time with a person or, expressly or impliedly requires, or authorises, a parent to spend time with a child. However, the power the State Court has is limited and the Court must not revive, vary, discharge or suspend a Parenting Order unless:

    It also makes or varies the Intervention Order; and
    The State or Territory Court has material before it that was not before the Family Law Court in making the Parenting Order; and
    The Court must have regard to the best interests of the child(ren) and whether it is in the child(ren)’s best interests to spend time with both parents, and that the variation, revival, discharge or suspension of the Parenting Order is appropriate because a person has been exposed to or is likely to be exposed to Family Violence as a result of the operation of the Parenting Order.

Extraordinarily, section 68T of the FLA provides that no appeal lies from the revival, variation or suspension of an Order under section 68R of the FLA.

Evidence

In addition to section 69ZT (relating to the application of provisions of the Evidence Act 1995 (Cth) in parenting proceedings) the Family Law Courts under section 69ZW may:

    “(1) …make an order in child-related proceedings requiring a prescribed State or Territory agency to provide the court with the documents or information specified in the order.
    (2) The documents or information specified in the order must be documents, recordings, or information about, one or more of these:

(a) any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;

(b)  any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;

    (c) any reports commissioned by the agency in the course of investigating a notification.

(4) A law of a State or Territory has no effect to the extent that it would, apart from this subsection, hinder or prevent an agency complying with the order.

(5) The court must admit into evidence any documents or information, provided in response to the order, on which the court intends to rely…”

In addition, section 69ZX(3) of the FLA also provides that:

“(3) The court may, in child-related proceedings:

(a) receive into evidence the transcript of evidence in any other proceedings before:

(i) the court; or

(ii) another court; or

(iii) a tribunal;

…draw any conclusions of fact from that transcript that it thinks proper…

(b) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).”

 

This means that any evidence admitted in Intervention Order proceedings is admissible in parenting proceedings, including the transcript of those proceedings, and any relevant documents produced by State and Territory Child Protection Agencies and the relevant State or Territory Police.

The power detailed above allows the Court to adopt recommendations, findings, decision or judgment of another Court to be adopted and for conclusions of fact from a transcript to be adopted.[8]

This may mean that if you are acting for the Respondent or Applicant (dependent on the material which may be produced to the Magistrates Court) you recommend to your client that they instruct you to propose that the Intervention Order proceedings be resolved by consent without admission to avoid that material being available to the Family Law Courts in any parenting proceedings, and in certain circumstances, in financial proceedings.

 

Making / Defending Applications for IVOs, Risks & Family Law Proceedings

While necessary, Intervention Order proceedings pose risks not only to the Applicant and the Respondent, but risks to other Affected Family Members, such as children. Broadly speaking the risks are as follows:

    If the Intervention Order matter proceeds to a Contested Hearing, positive findings of fact can be made. That is, a finding a fact can be made that the Respondent has committed Family Violence. It is important to remember here, that the rules of evidence do not apply to Applications made under the FVPA. The findings of fact can be considered in any criminal law or Family Law proceedings. It is important for Family Law Practitioners to consider how this may impact on the running of concurrent Family Law proceedings.

For example: It is well known that in property proceedings brought in the FCA or FCCA are subject to the strict rules of evidence. Exceptions are of course made for those relating to parenting proceedings. However, assume for a moment that only property proceedings are commenced in the FCA, and the Applicant is relying on significant acts of Family Violence as grounds for a further adjustment of property interest in their favour.  The findings of fact made by the Magistrate can be adduced by the Applicant as proof of Family Violence, even if circumstances arose that would have made that evidence inadmissible in the Family Court proceedings. The same applies section 69ZT(3) where a Court decides that parts of the Evidence Act should apply in parenting proceedings where the circumstances of the case are “exceptional”.

    Conversely, an Applicant to an Intervention Order can be cross-examined in Family Law proceedings regarding the making of such an Application. The risks here is always that a Court may find that the Applicant used an Intervention Order proceeding for a wholly tactical reason, be it to obtain a “back-door” sole occupation and use Order or to gain a tactical advantage in parenting proceedings. This can of course have adverse effects on the Final Parenting Orders sought by the Applicant to the Intervention Order Proceedings.

Consider for example if the Affected Family Member has an Application on foot in the FCA or FCCA to relocate with the children interstate or overseas. An important consideration in the making of a Relocation Order is the relocating parties’ ability to facilitate and maintain the children having a substantial and significant relationship with the other parent. This becomes all the more important in relocation cases as, more often than not, it results in a diminution of the other parents’ time and can see the children go months without seeing the other parent. If it is found that the relocating party obtained or made an Application for an Intervention Order for a “wholly tactical” reason, the Court may have some difficulty in believing that the relocating party will support the children’s relationship with the other parent.

    Intervention Order proceedings can have a great effect on children. Due to the delays in the Family Court, the making of an Intervention Order can see children go months without seeing the other parent. The reasons for this are unlikely to be clearly explained to the child and can result in only one side of a story being told. Children can, over time, become fearful of the other parent, even if such fear did not exist prior to the making of an Order. Parental relationships can struggle even if Family Court Orders are made for the resumption of time between the child and the parent. Family Law Practitioners, whether acting for the Applicant or Respondent, need to have regard to what steps can be taken to ensure that a child is offered the protection of an Intervention Orders, while at the same time, and if it is safe to do so, ensure that that child still maintains a relationship with the other parent.

Conclusion

In summary, are Intervention Orders necessary? Yes, they provide a fast and cost-efficient way of ensuring parties who are subjected to Family Violence have an Order for their protection which is enforced by the Victoria Police in the event of further threats of Family Violence.

Are Intervention Orders used as a litigation strategy by some litigants? Yes, although it does not follow that this is an abuse of process, it may be the most appropriate option available to certain parties.

Are Intervention Orders used by some litigants in a manner which may constitute an abuse of process? Yes. However, where property or parenting proceedings are on foot or are likely to be instituted this is a dangerous and ill-advised strategy not to mention an improper use of Court resources to the detriment of applicants who do require the protection of an Intervention Order.

Remember, take care with Intervention Orders in the context of parenting proceedings.

Although the ‘friendly parenting provision’ has been removed from the FLA the Family Law Courts maintain an emphasis on children having a meaningful relationship with both parents to the extent consistent with their best interests. The assessment of best interests under the FLA involves a weighing of the benefit of that ‘meaningful relationship’ with the need to protect children from Family Violence, neglect and Child Abuse, albeit with greater weight placed on the latter consideration.

However, the mere fact that an Intervention Order is in place does not permit Affected Family Members in Intervention Order proceedings, in the absence of a clear and ongoing risk posed to the child by the Respondent, to conduct themselves in a manner adverse to the best interests of the child. Such conduct will result in potentially significant ramifications (including a change of residence in certain circumstances) in parenting proceedings if it can be established on the evidence that Intervention Orders have been used to prevent a meaningful relationship between a parent and a child.

 

[1]Royal Commission into Family Violence (Victoria), (2016), Summary and Recommendations Volume, see: http://www.rcfv.com.au/Report-Recommendations.

[2]As above at footnote 1.

[3]As above in footnote 1.

[4]In relation to the Family Law Act 1975 (Cth) please also see the substantial amendments which took effect in 2012 in relation to family violence and the determination of parenting matters following the enactment of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth).

[5]Revised Explanatory Memorandum, (2017), Family Law Amendment (Family Violence and Other Measures) Bill 2018 (Cth), see: https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/s1109_ems_c73160c1-1aa2-44e6-aaae-9ed7efe2b6b8/upload_pdf/682845.pdf;fileType=application%2Fpdf.

 

[6]‘Two Years on from the Royal Commission Into Family Violence’, (2018), Family Violence Branch, Department of Premier and Cabinet, Victorian Government, at page 17, see: https://www.vic.gov.au/system/user_files/Documents/fv/Two%20years%20on%20from%20the%20Royal%20Commission%20into%20Family%20Violence.pdf.

[7]See Schieffer v Schieffer [2013] FamCA 168.

[8]This is significant if conclusions of fact are adopted from a transcript, as the Judge in the parenting proceedings will not have had the benefit of hearing the evidence and assessing the credit of the witness in the intervention order proceedings, consider Fox v Percy (2003) 214 CLR 118.





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