Family Violence: What is it and how to apply for a Protection Order if you feel unsafe

In the ACT, the Family Violence Act 2016 sets out the pathway for a Registrar or Magistrate to make a Family Violence Order in favour of a party seeking protection.

What is family violence?

Family violence includes behaviour towards a current or former partner or spouse, or another family member involving physical, emotional, financial or sexual violence or abuse, as well as threatening or coercive and controlling behaviour. Specific examples of behaviour which constitutes family violence recognised under the Family Violence Act include exposure of a child or children to family violence, sexually coercive behaviour, damaging property and harming an animal.

How do I apply for a Family Violence Order?

An Application for Family Violence Order will be heard by a Registrar or Magistrate in the ACT Magistrates Court.

The Court will generally hear an application for an Interim Family Violence Order on the same day that the application is made. It is heard on an ex-parte basis, meaning that the Respondent is not put on notice that the application has been made until after the application for an interim order has been determined by the Court.

On what grounds may the Court make an Interim (Temporary) Family Violence Order?

The Court may make an interim order if satisfied that the order is required to:

1.      Ensure the safety of an applicant from family violence; or

2.      To prevent substantial damage to an affected person’s property.

If an interim order is granted, it will remain in place until such time as the application for a final family violence order has been determined, unless an application is withdrawn. An interim order should not however be in place for longer than 12 months.

After the application for an Interim Family Violence Order has been determined, the Court will conduct a preliminary conference in order to determine whether there are prospects of the matter resolving by agreement on a final basis. This may include an agreement for an Order being in place for a defined period; an agreement that no order will be made; or in an outcome where one or both parties make an Undertaking to the Court to refrain from engaging in family violence.

On what grounds may the Court make a final family violence order?

The Court may make a final order if:

1.      The applicant (the person seeking protection) has reasonable grounds to fear family violence by the respondent (the person that they are seeking to be protected from); or

2.      The respondent has used family violence against the applicant.

The Court can make a final order that is in place for up to two years, but if requested, the Court may make an order for a longer period of time if the Court is satisfied that there are special or exceptional circumstances that justify it.

Will the Family Violence Order only be recognised in the ACT?

Family Violence Orders are nationally recognised and there is no need to apply for separate orders in different states, if for example, you live between NSW and the ACT and wish to ensure that the Order operates irrespective of your location.

For advice in relation to a family violence application, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe

Multi-purpose documents? Harman Undertakings & sharing the evidence

Following the breakdown of a relationship, you can find yourself facing multiple legal issues, including arrangements for the children, dividing property and in some cases, allegations of family violence arise. It is not uncommon for someone to be involved in proceedings before the Federal Circuit and Family Court of Australia (FCFCOA) (dealing with parenting or property matters), as well as proceedings before the ACT Magistrates Court.

As part of parenting proceedings, the FCFCOA sometimes will make an order for you and the other party to attend upon a psychologist for the purposes of preparing a Family Report. The Family Report is admissible in the FCFCOA proceedings; however you may consider that the report is useful to defend some of the allegations in the proceedings before the ACT Magistrates Court. Similarly, there may be certain evidence (including Affidavits or subpoena material) which would assist you in defending proceedings before the ACT Magistrates Court.

Where documents have been prepared for the purposes of proceedings before the FCFCOA, you are not automatically allowed to use those documents in proceedings outside of the FCFCOA. This is due to an implied undertaking or obligation to the Court (known as the Harman Undertaking), that documents prepared for the purposes of the FCFCOA proceedings will only be used for that purpose.

Separately, section 121 of the Family Law Act 1975 (Cth) imposes a restriction on the publication of any part of family law proceedings which identifies any person that is a party to or otherwise associated with those proceedings. However, this only relates to the voluntary broadcasting of information and does not apply to evidence to be given in Court.

In special circumstances, the Court may grant leave (or permission) for the release of certain documents (or parts of documents) to use in other proceedings (such as criminal or civil proceedings). The Court will consider whether there are ‘special circumstances’ (or a legitimate reason for the release of the document(s)) and whether there is any injustice caused to a party in providing that document.

You must make an application to the Court for leave to be released from the Harman Undertaking.  Where there is an application for documents to be released to the ACT Magistrates Court, it is likely that you will be able to argue that the document will remain confidential if it is just being released to the Magistrate. You should also consider whether you need a full document, or whether certain paragraphs of that document will be sufficient for the purposes of defending or supporting your matter before the ACT Magistrates Court.

In any event, it is important for you to seek advice from a lawyer if you wish to use certain evidence before the FCFCOA in proceedings before the ACT Magistrates Court. A lawyer can assist you with assessing the probative value of that evidence, and the process of obtaining the release of that document. Robinson + McGuinness is available to assist you with your family law matters and personal protection matters, including applications for release of documents.

If you would like advice in relation to your family law matter, contact our office at (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Author: Anika Buckley

What are the risks of a poorly prepared Family Violence Order

Being involved in a family violence matter, be it in place for your protection or against you, is a complicated and emotional process. In the ACT, an applicant is able to obtain an interim Family Violence Order, for their immediate protection, the protection of certain personal property, and / or for the protection of children in their care, without any notice to the person against which the orders applies. They are often obtained without the benefit of legal advice about their impact on the specific circumstances of that particular relationship.

This can often lead to clauses within an interim FVO that are ineffective, or clauses omitted that should have been included to ensure Police are able to properly pursue any allegations of breach. While there is the ability to amend an interim FVO, unless it is particularly urgent, the amendment is often dealt with when the Court considers whether or not to make a final Family Violence Order. This can be months after the interim FVO was applied for and granted.

An ineffective family violence order may not only fail to do what was intended, which is ensure the protected person’s safety, it can also impact on related criminal or family law proceedings. For example, a family violence order that provides for no exceptions for contact, where the applicant and respondent share children. While no contact family violence orders can and are made, commonly, there are strict exceptions included in a family violence order to ensure a child’s continue relationship with both parents subject to that relationship being free of a risk of harm to that child. If these factors are not considered, or acknowledged by exceptions that permit safe contact, the solutions are:

1. Applying to amend the family violence order in the ACT Magistrates Court – unless it is urgent, there is a risk the amendment will be tacked onto the final hearing, which means there could be a substantial gap in contact between a child and a parent spending time until that amendment application is determined; or

2. Applying to amend, suspend or discharge part or all of the family violence order in the Federal Circuit and Family Court of Australia. While this process may be more effective on an interim (immediate) basis, the cost of filing, the effort in preparing the documents necessary to file, and whether you have complied with the strict pre-action process (subject to any limited exceptions) can turn a simple issue into an expensive one.

While a family violence order is often obtained quickly, with the priority ensuring the safety of the protected person, it is crucial not to forget that they are legally binding and enforceable orders issued by a Court. A poorly drafted or proposed family violence order may end up costing more in time and money than it provided by way of resolving or de-escalating the conflict or safety issues that may be experienced. It is worthwhile obtaining advice prior to applying for a family violence order, or consider engaging a lawyer to prepare for or defend you against a family violence order.  

If you are concerned for your immediate safety, contact 000. If you require safety planning, or wish to discuss whether a family violence order may be breached, contact DVCS on (02) 6280 0900 or the 131 444 non-urgent ACT Police number.

Given the personal and often distressing nature of having to tell your story of family or domestic violence, you may not always be your best advocate.  If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online. 

I don’t understand what my family violence matter is listed for: the case management pathway in ACT family violence proceedings

There has been a significant streamlining of the family violence process in the ACT. Where previously a matter usually ran through a three step process: application, negotiation, hearing; there have been some changes to the pathway that require you to be familiar with, and understand where, the matter is up to.

The current pathway is broadly:

1. Application: A person files an application with the ACT Magistrates Court for a family violence order. If the application includes for immediate protection, known as an interim Family Violence Order, that part of the application is generally listed the same day it is filed. Whether or not the interim Family Violence Order is granted, the matter is then listed for what is called a preliminary conference, which is a form of negotiation. The preliminary conference is usually 4 – 6 weeks from the date of application, to enable the AFP to serve the respondent and make them aware of the proceedings.

2. Negotiation: After the AFP serve the application and interim FVO (if granted) upon the respondent, the parties are required to attend a preliminary conference at the ACT Magistrates Court. This is the respondent’s first involvement in the family violence process. For the applicant, it will be their second or third, depending on whether their interim application, if applied for, was heard on the same day it was filed. The parties will use the preliminary conference to try to negotiate a final settlement of the dispute, failing which, the matter will be listed for a pre-hearing directions. The pre-hearing directions is usually 6 – 8 weeks from the preliminary conference, to enable people to engage lawyers, get legal advice, or start preparing their case for hearing.

3. Pre-Hearing: this is a purely procedural listing, that helps the Court determine how much time and what level of resources need to be allocated to your hearing. There will be an expectation on the parties to know what may assist in resolving their dispute, what Subpoenas or witnesses need to be arranged, how much time the Court needs to allocate to the matter, and whether there is anything relevant the Court needs to be aware of. It could be there are interrelated matters, or mutual applications, that are best dealt with on the same listing date. These are things the Court should be told at the directions, as it may impact when each of the cases are listed for hearing.

4. Hearing: this is the day where the application will be determined and resolved. While the Court will have allocated time for your matter from what it knows at the pre-hearing directions, there will be time allocated to have further negotiations if they will help. You will need to come prepared to run your case. It is important that if you are thinking of engaging a lawyer, and counsel (known as a barrister), you have done so either prior to the pre-hearing or shortly after it occurred. It is not enough time to engage a lawyer the week or the day before. If you realise the day of the hearing that you need further evidence, or there is a witness who you didn’t properly inform to attend, your matter will run that day without them.

There is an expectation on participants, regardless of whether they have legal representation, or have had the benefit of legal advice, to know where their matter is up to, and what they need to do at that stage. A failure to properly prepare your family violence matter could see an order being made, or refused, against your wishes. Given the lead in time to the hearing in the current pathway, it is no longer enough to turn up to the date of hearing having only just worked out a Subpoena needs to issue, or a witness should have been called. There will be several matters listed with yours at any stage of the process, and the Registrar or Magistrate will only have a limited amount of time in which to hear your dispute. While family violence is a distressing and highly personal area of the law, it is still an element of the judicial process and needs to be respected as part of that process.

If you are concerned for your immediate safety, contact 000. If you require safety planning, or wish to discuss whether a family violence order may be breached, contact DVCS on (02) 6280 0900 or the 131 444 non-urgent ACT Police number.

Given the personal and often distressing nature of having to tell your story of family or domestic violence, you may not always be your best advocate.  If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online. 

I’ve Been Served a Family Violence Order That Includes My Children, Now What?

In the Australian Capital Territory, an order that is made for the safety and protection of a person, against a former partner or family member, is known as a Family Violence Order or FVO. Children can be included on an FVO of a parent. They can be included as a “protected person”, which means generally they are considered in all terms set out in the FVO, or they may be specifically referred to in one or some of the terms, such as to not commit acts of family violence towards them or in front of them.

It is important to carefully review the entire FVO when you are served by police, and to understand how the children are named, and to what extent they are covered by the prohibitions of the FVO. Often, there are exceptions contained within the FVO, for example, there may be a restriction on the respondent coming within 100 metres of the applicant, except at a Court or tribunal proceeding, for the purpose of mediation; or where children are involved, when attending changeover, where the distance may be reduced to a range that ensures the safe handover of the children appropriate to their age.  Each FVO will contain different prohibitions, set to the evidence given in the application filed by the applicant and their evidence given before a Deputy Registrar at the interim hearing.

In the event there are no exceptions in the FVO that permit contact between the respondent and children, including in person or by telephone, the respondent is entitled to:

1. Make an application to vary the FVO in the ACT Magistrates Court. An application in the ACT Magistrates Court focuses on not adversely affecting the safety of the protected person/s.

2. Make an application to vary the FVO in the Federal Circuit and Family Court of Australia (FCFCoA). An application to vary the FVO in the FCFCoA focuses on what is in the children’s best interests.

3. Negotiate a variation by the agreement at the Preliminary Conference, usually the first Court event in the family violence proceedings a respondent attends, to include the ability to communicate with and spend time with the children.

It is best to remember while a FVO is in place for the protected person/s safety, it should be treated as a two-way street. It is important to ensure you comply with the terms of the FVO while they are in effect. While a FVO is a civil order, it has criminal ramifications in the event it is breached. A breach of the FVO, no matter how trivial or minor, may also be used as a basis to amend, extend, or seek an interim FVO be made final.

In the event you are concerned for your immediate safety, you should contact the police on 000. In the event you require safety planning or guidance on non-urgent family violence matters, you should contact the AFP on 131 444 or DVCS at (02) 6280 0900.

Determining how to vary, or whether to vary an FVO, can be a difficult process. Depending on the circumstances of your situation, such as whether there are related family law, criminal law or child welfare proceedings, will assist in determining which pathway is more suitable for you. If you would like to discuss your options and how we can assist you, contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

Types of Family Violence Orders in the ACT

When considering whether to apply for a Family Violence Order (FVO) you should be aware of the options available to you:

1. After-Hours FVO: Intended to be a “stop-gap” measure to ensure safety in the most serious and urgent circumstances, this FVO is brought by police outside of the ACT Magistrate Court hours of operation. It is in effect for a period of two business days and is generally used to ensure the safety of the victim until they can make a fulsome application to the Court for an Interim FVO.

2. Interim FVO: May be granted the same day it is applied for, an Interim FVO is in effect once served and up until it is withdrawn or a Final FVO is determined. While it usually is in effect for less than 12 months, there are circumstances where it may be extended, such as where service upon the respondent is difficult, or where complexities in the matter has seen the listing for a hearing as to the Final FVO get pushed out. An Interim FVO is intended to ensure the protection of person(s) and their property in circumstances where such is needed prior to the Court being able to determine the application for a Final FVO.

3. Special FVO: Where there are related criminal charges, a Special Interim FVO may be made by the Court or convert an existing Interim FVO between the parties. A Special FVO is in effect until such time as it is revoked, the application for a Final FVO is discontinued or dismissed or a Final FVO is made. A Special FVO cannot proceed to hearing of the Final FVO until the related criminal charges have resolved, and so may often remain in effect longer than a Interim FVO to ensure the safety of the protected person(s) as the related criminal matter proceeds.

4. Final FVO: A Final FVO is what the Court determines at a final hearing but can also be consented to between the applicant and the respondent throughout the FVO process. While generally in effect for a period of two years, there are special circumstances that may warrant the Court ordering a FVO be in place for a longer period. Parties usually cannot consent to a Final FVO that is in effect for longer than two years. A Final FVO may also be extended, so long as the application for extension is made prior to the expiry of the existing Final FVO. If the Final FVO has expired, an applicant will need to make a fresh application for a FVO, including seeking an Interim FVO if they require protection in place prior to the Court being able to determine the fresh application.

5. Non-ACT FVO: Obtained in another state, territory or New Zealand, there is often no need for an existing Non-ACT FVO to be registered in the ACT for it to operate. If the Non-ACT FVO was made after 25 November 2017 (excl. Victoria), it will automatically be recognised in the ACT without the need to register it. For a FVO issued in Victoria, such automatic recognition applies to any order made on or after 25 November 2017. All other Non-ACT FVO will however need to be registered to ensure their effect within the ACT. Both automatically recognised Non-ACT FVO, and registered Non-ACT FVO, can be amended or extended in the ACT without the need to return to the issuing jurisdiction.  

Your circumstances and the level of protection you and others may require may impact upon which FVO is available to you. If you feel you need to urgently address your safety, you should call 000 or DVCS on (02) 6280 0900.

Getting detailed family violence advice may be the difference in ensuring you receive a FVO with the right protections to ensure your safety and the safety of others. If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

What happens at the Preliminary Conference?

Whether or not an Interim Family Violence Order (FVO) was granted, the application for a Final FVO will be listed and given a date for a Preliminary Conference. Previously known as a Return Conference, this is an opportunity for the parties to resolve their family violence matter by agreement. The Preliminary Conference is convened by a Deputy Registrar of the ACT Magistrates Court, and generally runs for a period of a few hours, though some of this may include waiting while the Deputy Registrar goes between the parties and endeavours to broker a resolution of the matter. The parties are in separate meeting rooms and are unlikely to see each other at the Preliminary Conference.

If the matter does not resolve at the Preliminary Conference, and an Interim FVO is in place, it will continue to operate until the application for a Final FVO is determined. At the conclusion of the Preliminary Conference, the parties will be given further dates to attend the Court for:

1. Pre-Hearing call-overs to allocate the matter to hearing; and / or  

2. Pre-Hearing mention the morning on the same day of the hearing of the application for a final FVO; and

3. Hearing date on the same day as the Pre-Hearing mention.

You should ensure you or your legal representation attend the Preliminary Conference. During the current Covid19 lockdown in the Australian Capital Territory, Preliminary Conferences are occurring by teleconference. In the event you do not attend the Preliminary Conference, and you do not seek the Court adjourn the Preliminary Conference, the Court may make a decision as to the matter without further notice to you. If you are the applicant, this may mean your application for a Final FVO is dismissed, along with any Interim FVO in place for your protection. Should this occur, you will then be required to restart the application again in its entirety should you wish to continue. There is also a risk that you may be liable for legal costs incurred by the respondent if they have legal representation. Should you be the respondent, this may mean a Final FVO may be made against you, in the terms as sought by the applicant, such as the inclusion of children as protected persons, without further notice to you. It is crucial if you are unable to attend the Preliminary Conference for any reason you make contact with the Court as soon as possible prior to the listing.

If you attend the Preliminary Conference without legal representation, and your matter does not resolve, it is a good idea to obtain legal advice at its conclusion. Preparing for a hearing of the Final FVO may involve the calling of witnesses, the obtaining of evidence to support your case, issuing of Subpoenas, or requests for information or disclosure from the other party. Each of these elements have certain processes and forms that must be completed correctly and in required time periods. It is unlikely the Court may allow you to adjourn the hearing on the day if you then realise you require further information or evidence to best argue your case.

In the event you feel you need to urgently address your safety; you should call 000 or DVCS on (02) 6280 0900.

While you will not see the other party at Court, negotiating a legal process about family or domestic violence is a stressful situation for anyone. If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online. 

Making an application for a Family Violence Order

In applying for a Family Violence Order (FVO), you should consider whether your safety needs will be met with a Final FVO, or whether you also need an Interim FVO. An Interim FVO is made in circumstances where protection is needed to ensure the safety of the victim(s) and / or their personal property before the Court has the time to consider the application for a Final FVO. Often when an Interim FVO is discussed, the circumstances are considered “urgent” or especially volatile. An Interim FVO may be sought at the conclusion of a relationship, where leaving safely is unlikely to occur unless an Interim FVO is in place, or where the whereabouts or circumstances of the respondent are unknown or unpredictable and elevate the risk to the victim(s).

Both FVO are applied for with the one set of forms, however when applying for an Interim FVO you will be required to give evidence to the Court on the day you make the application. While the respondent is not given notice of the application, or usually an opportunity to appear at the Interim hearing, they are entitled to seek a copy of the evidence you give to the Court following the Interim hearing by way of request for the transcript. They will also be given a copy of the application, regardless of whether the Interim FVO is granted.

During the current Covid19 lockdown in the Australian Capital Territory, you can still apply for a Family Violence Order (FVO). You are able to fill in and file the three forms required electronically or in-person with the ACT Magistrates Court. The forms are readily available on the ACT Magistrates Court website, and there is no fee associated with making the application. When filing them you should ensure you keep a copy of the forms yourself to refer to later on. If you have applied for an Interim FVO, you will be contacted by the Court to attend your Interim Hearing by way of teleconference. You should ensure you are able to attend the teleconference in a quiet space that is free of any distractions or interruptions. The Court officer who will hear the Interim FVO application is often a Deputy Registrar. They will have read the application filed by you, and will have you swear or affirm to the truth of its contents and of any further evidence you may give on the telephone. They may ask you a range of questions which are aimed at determining the extent of the family violence alleged and whether it meets the test for you to be granted an Interim FVO.

Following the Interim Hearing, you may or may not be granted an Interim FVO. If an Interim FVO is granted, it may not always be in the exact terms that you sought. At the conclusion of the Interim Hearing, you will be given a date by the Deputy Registrar to return to Court to attend a Preliminary Conference, the respondent will also be required to attend the Preliminary Conference in relation to your application for a final FVO.

The Australian Federal Police (AFP) will then serve a copy of your application (but not the form that includes your contact details) upon the respondent. If you were granted an Interim FVO, they will also serve a copy of it upon the respondent. Once the Interim FVO is served upon the respondent, it is in effect, and you will be notified of this by the AFP. Any conduct by the respondent that is contrary to the terms of the Interim FVO following service may give rise to a breach of the Interim FVO, and you may contact AFP to report these.

It is best to remember while a FVO is in place for your safety, and the safety of others, it should be treated as a two-way street. While you are the applicant, or the protected person, you should not engage in behaviour that is prohibited by the terms of the FVO. If you are unsure of your obligations while a FVO is in effect, you should seek legal advice.

Attending Court to make an application for an Interim FVO is a lawful exception to the lockdown restrictions. If you feel you need to urgently address your safety, you should call 000 or DVCS on (02) 6280 0900.

Given the personal and often distressing nature of having to tell your story of family or domestic violence, you may not always be your best advocate.  If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.