By Kirstie Grigor, Head of Criminal Law and Kelly Leydon, Principal Lawyer, Accredited Specialist in Family Law
The current situation in Melbourne and right across Australia has resulted in less freedom of movement and more time spent at home, which has sadly resulted in a spike in family violence. Both the frequency and severity of family violence have increased.
You, or someone you know, might be in a situation where you are feeling scared or unsafe as a result of a family member’s behaviour. Alternatively, your behaviour might be causing a family member to feel unsafe, powerless or isolated.
Family violence is a serious matter and when it results in an Intervention Order Application, legal advice should be sought.
The relevant law in Victoria defines family violence (more commonly known as domestic violence) to include behaviour that is physically or sexually abusive, emotionally or psychologically abusive, threatening or coercive, or that controls or dominates the family member and causes them to fear for their safety or wellbeing, or for the safety or wellbeing of another person.
This behaviour may constitute family violence even if it would not constitute a criminal offence.
Family violence can be perpetrated by a current or former intimate partner, by a parent to their child, through mistreatment towards an older person by a partner or family member, or mistreatment of a parent by a child or dependant.
If you need immediate protection from family violence, Victoria Police has the power to issue a Family Violence Safety Notice (FVSN) outside of court hours. It protects victims of family violence and can exclude the alleged perpetrator from the family home. Police will apply for a FVSN if they assess the situation and believe on reasonable grounds that there is an immediate risk to the safety of the affected family member or their children. Once the alleged perpetrator is served with the Family Violence Safety Notice, it is in force and has the same effect as a Family Violence Intervention Order (FVIO) until the matter is brought before a Magistrate.
If you are served with a Family Violence Safety Notice, you should call a lawyer for advice.
A FVSN is not a criminal charge, but it is an enforceable order and must be complied with once you are served. It remains in force until the matter goes before a Magistrate, which must happen within five days of service of the notice. If you contravene a FVSN, you can be charged with a criminal offence and face a sentence of up to two years in jail or a fine of up to $35,000.
On the first court date after the notice is issued, the police can apply for an Intervention Order against you, which is likely to have similar conditions as a FVSN and can remove you from your home and stop you communicating with your family.
If you are served with an Intervention Order Application or a Family Violence Safety Notice, it is essential you seek legal advice. Your lawyer might be able to assist you to fight the order or negotiate the conditions and/or duration of the order. A lawyer can likewise assist you to apply for your own Intervention Order, if the police are not already involved. Legal representation at court for either the Applicant or the Respondent can result in a fairer outcome. Without seeking a lawyer’s advice, you might not fully understand the options available to you or the potential long-term ramifications of a final Intervention Order being made.
If you are charged with a criminal offence, you will receive charge sheets and a court date. You must attend court to answer the charge. When you attend court you can plead guilty to some or all of the charges, or you can ask to adjourn your matter to a future date if you need more time to obtain legal advice, negotiate with the prosecution or gather material to assist in your case. Your matter will only be finalised by you pleading guilty, by the prosecution withdrawing the charges or by you pleading not guilty and a Magistrate hearing evidence and deciding the verdict. If you plead not guilty to a charge, you would usually attend court on three or four separate occasions before the matter is finalised.
If you are charged with any criminal offence, the first thing you should do is seek legal advice from a criminal lawyer. Your lawyer will deal with the police on your behalf and request all necessary documents from them. The prosecution must produce enough evidence to prove the case against you beyond reasonable doubt. If you plead not guilty, and the prosecution cannot convince the Magistrate beyond reasonable doubt of all of the elements of the offence, then you are acquitted of the charge.
All criminal charges arising out of family violence incidents are given a first listing date within four weeks of the issue of the summons to attend court. From that first date, if the matter is not resolved, any subsequent court dates must be within no more than four weeks from each previous date – so your matter could resolve within four weeks if you plead guilty to some or all of the charges. If you are pleading not guilty, and the charges are not withdrawn by the prosecution, your case might take three or four months to resolve.
Currently, during COVID-19, the Magistrates’ Court is not hearing any contested matters, so your ultimate court date might not be for many months following the receipt of charges.
Contact Gordon Legal for advice and representation regarding any aspect on both sides of the Intervention Order process. All initial advice sessions are free and can be conducted by telephone or Zoom by Kirstie Grigor, Head of Criminal Law.
For advice regarding the impact of family violence and Intervention Orders on family law matters, contact Gordon Legal to speak with Kelly Leyden, Family Law Accredited Specialist.
At Gordon Legal, we understand that domestic and family violence is a personal issue.
For personalised and individual advice, we offer consultations to discuss your matter.
Please call Gordon Legal on (03) 9603 3000 or our Geelong office on (03) 5225 1600 to speak with a member of our team.
Given the current environment, we are providing consultations over the phone or via video conferencing platforms.
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