Knowledge to Advocate (Legal System)
A Resource for Workers Supporting Victim Survivors of Family Violence through the Legal System (2018)
Knowledge to Advocate provides workers supporting victim survivors with key information about the Victorian legal system including Victoria Police processes, Intervention Orders, legal support and Magistrates’ Court processes. Each chapter includes a video, links to further resources and a Q&A that expands on the material in the video.
The information provided is based on the expertise of service providers in the northern metropolitan region.
It may be used as a tool for self-learning and reflection, or to support supervision or team development.
Audience
This resource was developed for any worker who supports victim survivors of family violence through the legal service system. This may include specialist family violence workers but also workers from mainstream services. This resource is particularly useful for inducting new workers.
Chapters
One – Legal Service System
Two – Victoria Police Response
Three – Intervention Orders & Legal Support
Four – Magistrates’ Court
Disclaimer
The material in this film is intended as a general guide only. Workers should not use this resource to provide legal advice. Women’s Health In the North expressly disclaims any liability howsoever caused to any person in respect of any action taken in relation to the contents of this resource.
Notes on terminology
Victim survivor – In this resource this term refers to victim survivor of family violence
Affected Family Member (AFM) – The person who a Family Violence Intervention Order aims to protect.
Applicant – The person applying an Intervention Order
Breach – Breach of an Intervention Order
Family Violence Intervention Order (IVO) – A court issued order that protects a person from a family member who uses violence and has conditions about how the respondent can behave.
Family Violence Safety Notice (FVSN) – Victoria Police can apply for a family violence safety notice before an intervention order application is heard in court.
Respondent – The person named in an Intervention Order who has used family violence.
Acknowledgements
This resource was developed in collaboration with stakeholders in the northern metropolitan region. It was first informed by contributions made at the What She Needs to Know: Supporting victim survivors of family violence through the legal system forum in November 2017.
Video Interviews We would like to acknowledge the following people for sharing their expertise in the video interviews. Brad Turney (Victoria Police), Carmel Ross (Victoria Police), Ella Crotty (Fitzroy Legal Service), Kelly Faldon (Djirra), Maree Foelz (Neighbourhood Justice Centre) and Megan Ross (Djirra).
Q&As We would also like to acknowledge the following people for their important input into the Q&As: Courtney Lucanto (Magistrates’ Court of Victoria), Ella Crotty (Fitzroy Legal Service), Franky Bain (Fitzroy Legal Service), Maree Foelz (Neighbourhood Justice Centre), Marissa Johnpillai (West Heidelberg Community Legal Service) and Sharon Matheson (Victoria Police).
Chapter One – Legal Service System
Chapter One provides an overview of the legal service system in relation to family violence, including in regards to the intersection with family law. It also outlines the barriers that victim survivors of family violence face in the legal system.
Navigate this resource
Previous: Introduction
Next: Chapter 2 – Victoria Police Response
Infographics in this video
Legal Service System
Intersecting Discrimination
Intervention Order Process
Q&A – Intersections with Family Law
The following are the questions most commonly asked by regional stakeholders about the intersection with family law.
To print the Q&A, click here.
What impact can a family law parenting order have on a family violence intervention order?
The interaction between parenting orders and intervention orders is quite complex.
When considering an intervention order application, magistrates from the Magistrates’ Court will consider any current parenting orders or agreements in place.
An intervention order will usually include a condition that allows the respondent to do anything that is permitted by a parenting order or a written agreement (such as a parenting plan). This operates as an exception to the other conditions on the intervention order, so that the respondent can continue to do the things the parenting order or written agreement allows them to do, as long as they don’t commit family violence in the process.
If there is no family law parenting order, how does an intervention order impact on the respondent’s contact with children?
If the intervention order says the respondent cannot communicate with, or come near, an affected family member who is their child, or if it says they cannot live at the same address as the child, the respondent’s access to the child is limited. If the intervention order prevents all contact and has no exceptions, the respondent may not be allowed to speak to or see their child at all.
An intervention order can allow any child contact restrictions in the order to be overridden if the parents agree in writing (e.g. via parenting plan, text or email). In these cases there is usually also a provision for mediation, contact via a mediator or a lawyer, or sometimes limited communication between parents (usually in writing only) to facilitate contact with children. The respondent must not commit family violence during any of these processes.
What can the affected family member do if the intervention order allows for existing family law parenting orders, but contact with the respondent is unsafe?
Family law parenting orders are serious and there can be penalties for contravening them. If complying with parenting orders would put a child at risk, the affected family member can apply to the Magistrates’ Court urgently for an intervention order which temporarily amends or suspends the parenting orders to ensure the safety of a child. The affected family member will then need to apply for a change to the parenting orders in the family law courts, if the safety concerns are ongoing. Workers should encourage the affected family member to seek legal advice.
Further Resources
- Legal Service System Resources on the NIFVS website has more information about the legal service system including information about the intersection with the family law system
- NIFVS Service Directory provides a list of legal services, courts, specialist family violence services and other relevant services.
- NIFVS Forum: What She Needs to Know: Supporting victim survivors of family violence through the legal system The summary and presentations from the NIFVS Forum in November 2017 provide further information about barriers for victim survivors and perpetrator tactics.
- Child Protection: Know your rights factsheet. (Djirra)
- Safety Planning on the NIFVS website provides information about how workers can assess a woman’s risk and work with her to plan her safety.
Chapter Two – Victoria Police Response
Chapter Two explains the Victoria Police response to family violence and discusses how workers can support victim survivors through this process.
Navigate this resource
Previous: Chapter One – Legal Service System
Next: Chapter Three – Intervention Orders & Legal Support
Infographics in this video
Victoria Police Options Model
Family Violence Intervention Order Process
Q&A – Victoria Police Response
The following are the questions most commonly asked by regional stakeholders about the Victoria Police response to family violence.
To print the Q&A, click here.
What are the ways that family violence is reported to Victoria Police?
- Police may receive reports of family violence directly from the affected family members; their family, including children; from a friend, neighbour or anonymous person; or from another service.
- Reports are often made by telephone or in person at a police station.
- Police may also detect family violence in the course of their normal duties.
What is required of police attending family violence incidents, in relation to using interpreters?
- In cases where the affected family member is not fluent in English, an interpreter of the same gender as the victim (if appropriate) should be arranged at the earliest opportunity and at every stage of the investigation. This includes:
- during initial crisis intervention (e.g. at the scene)
- when evidence gathering and statement taking
- when explaining the conditions and purpose of a family violence safety notice and/or intervention order to the affected family member or the respondent.
- Police should not use individuals known to the affected family member or the respondent as interpreters. Importantly, family members and children should not be used.
In relation to the Victoria Police Options Model, why would police choose civil versus criminal action?
- Police investigate any criminal offences that have been reported to them. In addition to investigating the criminal offences, police will consider civil options and, where appropriate, will apply for an intervention order or family violence safety notice to help keep the affected family member safe.
- In circumstances where there are no criminal offences disclosed to police, consideration will still be given as to whether civil options are appropriate.
How do police support children and young people who are present or impacted by family violence?
- Victoria Police recognises that children and young people are particularly vulnerable to the negative impact of family violence and for this reason they are likely to require additional assistance and support. The needs of children and young people are different from their parents. Therefore, it is essential that police assess the interests of children independently from those of a parent.
- Upon receiving a report of any family violence incident, police must:
- consider the safety needs of children and young people separately and where appropriate include them in an application for an IVO to protect the AFM: or consider the need for a separate application with the child or young person as the AFM
- consider the referral or reporting needs of the child. If the child or young person has suffered or is likely to suffer, significant harm as a result of physical injury or sexual abuse, police must make a mandatory report to Child Protection
- consider making a referral to Child First where there are significant concerns for the wellbeing of a child, unborn child or young person
- make mention of children and young people present in any referral made on behalf of the affected family member.
What powers do police have to remove respondents and keep them away from the AFM and children?
- Police will make an application for an intervention order or family violence safety notice wherever the safety, welfare or property of a family member appears to be endangered by another family member.
- Intervention order conditions may, amongst other things, prohibit the respondent from:
- contacting or communicating with an affected family member by any means
- approaching or remaining within five metres of an affected family member
- going to or remaining within 200 metres of a named address or any other place where an affected family member lives, works or attends school/childcare.
- Once the intervention order or family violence safety notice has been served, a respondent who is in breach of the order can be arrested.
- ‘Holding powers’ are to be used for the safety of affected family members and their children, or preserve property of affected family members while an application is being made for an intervention order. A respondent can be directed to a police station, or another location and must remain there whilst the application for an intervention order is made.
Who in Victoria Police can workers liaise with after a family violence incident?
If workers have any questions following an incident that has been reported to police, they can liaise with the police member involved. The Family Violence Liaison Officer at the relevant police station may also be able to assist, and may refer the worker to the Family Violence Investigation Unit (FVIU) if the incident is being investigated or if risk management is being undertaken by the FVIU.
What is the processs to provide feedback or make a complaint about police response?
- In the first instance, feedback or issues concerning police action should be dealt with at the local level by contracting:
- the Family Violence Liaison Officer (who is a police supervisor)
- another police supervisor, or
- the Officer in Charge of the relevant police station.
- Any unresolved issues can be referred to the Divisional Family Violence Manager.
- Professional Standards Command can also be contacted if a person has feedback or wants to make a complaint about police.
Further Resources
Victoria Police Response resources on the NIFVS website has more information about the Victoria Police family violence response including the Victoria Police Code of Practice for the Investigation of Family Violence.
NIFVS Service Directory provides a list of legal services, courts, specialist family violence services and other relevant services.
Chapter Three – Intervention Orders & Legal Support
Chapter Three provides information about Family Violence Intervention Orders and how legal support can add to a victim survivor’s safety.
Navigate this resource
Previous: Chapter Two – Victoria Police Response
Next: Chapter Four – Magistrates’ Court
Infographics in this video
Intervention Order Process
Victoria Police Options Model
Legal Service System
Q&A – Family Violence Intervention Orders
The following are the questions most commonly asked by regional stakeholders about family violence intervention orders.
To print the Q&A, click here.
What is the difference between a family violence safety notice and a family violence intervention order?
A family violence safety notice can be issued by police when they attend a family violence incident. In effect, it is the application for an intervention order and leads to a court hearing. In practice, most family violence safety notices are automatically made into an interim intervention order or possibly a full intervention order (based on police evidence) at the first court hearing. The family violence safety notice is only valid until it comes to court.
What kinds of conditions are included in an intervention order?
- The court can include any conditions on an intervention order that it considers ‘necessary’ or ‘desirable’ in the circumstances. This gives the court the flexibility to tailor an intervention order to the specifics of the case before it.
- In practice, most intervention orders conditions are chosen from a pre-defined list which also appears on intervention order application forms. These include conditions that the respondent must not:
- commit family violence against the affected family member(s) (this is a standard inclusion)
- intentionally damage the affected family member’s property or threaten to do so
- attempt to locate or follow the affected family member or put them under surveillance
- publish material on the internet about the affected family member
- contact or communicate with the affected family member by any means
- approach or remain within a specified distance of the affected family member
- go or remain within a specified distance of the place(s) the affected family member lives, works or studies
- get another person to do anything the respondent must not do.
How can workers assist affected family members in completing an intervention order application?
- Workers can assist affected family members in an intervention order application by encouraging them to highlight how family violence is a risk to their safety. When making a decision about whether to grant an intervention order, magistrates focus on information relating to safety so this information must be clear.
- When it comes to listing previous incidents of family violence in the application, it is better to start with the most serious incident rather than completing incidents in date order. It is also important to include the most recent incident to highlight the ongoing nature of the family violence. Avoid including any incidents that don’t focus on the issue of safety.
- When giving examples of instances of family violence, include as much detail as possible (e.g. number of times, what exactly happened, when it happened). Avoid broad emotional statements without specifics (e.g. he abuses me).
- It is useful to encourage affected family members to keep a diary of incidents as this can aid their memory and strengthen the intervention order application.
How can intervention orders protect children?
- Intervention orders protect the person or people named on the order, as affected family members. Children can be included on their mother’s order.
- Magistrates will enquire about any children who may have been affected by the family violence and may make orders protecting them if needed.
- Intervention orders do not determine the parenting arrangements for a child, although they can impact parenting arrangements. For example, the intervention order may prevent a respondent from living, spending time or communicating with a child; however these conditions can be overridden by a family law parenting order.
- Many intervention orders have exceptions to the conditions on the order to enable contact with children where there is a written agreement in place (e.g. an agreement via text or email or a written parenting plan).
- An intervention order that protects a child can be applied for by the police, a parent of the child, or a person authorised by a parent of the child. In limited circumstances, children over the age of 14 years can apply for an intervention order for themselves.
Also refer to the ‘Intersections with Family Law’ Q&A.
What happens if an intervention order isn’t able to be served on the respondent?
- An intervention order, whether it is an interim or final intervention order, only becomes effective once it is served on the respondent. Normally this is done by the police or a court staff member giving a copy of the order directly to the respondent. If the respondent is in court when the magistrate makes the order the intervention order is considered served.
- Where the intervention order cannot be personally served on the respondent, the police will provide information to the magistrate about measures they’ve taken to serve the intervention order. Sometimes a magistrate will adjourn the hearing if the respondent hasn’t been served. If at the next hearing the order has not yet been served, an order for a substituted service may be made by the magistrate, which allows for the order to be served by another method (e.g. to a respondent’s workplace).
What does it mean for the affected family member if the respondent is also granted an intervention order against the affected family member?
- Cross-application is the term used where both the respondent and the affected family member apply for orders against each other.
- The court will want to hear both applications at the same time if possible, to streamline the process and to ensure that any orders made are compatible with each other.
- The rules for a cross-application are the same as for a single order – the person named as the respondent must comply with all the conditions on the order. If the affected family member breaches the intervention order taken out against them in the cross-application, then they could be subject to criminal charges.
- Respondents to an intervention order sometimes use a cross-application as a strategy to embarrass, frustrate or harass the affected family member. This is an abuse of the court process and an application can be made to have the cross-application struck out as vexatious or frivolous.
How does the affected family member know if an intervention order has been served?
- If the respondent was not at court on the day the order was made, the police will service the order on the respondent, usually within a day or two. The police will not necessarily notify the affected family member when service has taken place.
- An affected family member can call the police or the court to confirm that an intervention order has been served.
What happens when an intervention order expires?
- Most intervention orders are for a specified period, often for 12 months. They can be made for shorter or longer periods, including an indefinite order that does not have an expiry date.
- When the intervention order expires, the respondent is no longer required to comply with it from midnight on the date it expires.
- If an intervention order is due to expire and there is still a risk of violence, it is best to apply to extend the intervention order. This can only be done before the intervention order expires, and ideally should be done a few weeks before expiry. The court can extend the intervention order on the same conditions or on different conditions.
What can be done if Victoria Police are not taking breaches of intervention orders seriously?
- Breaching an intervention order – even in a minor way – is a criminal offence and a police report should always be made if a respondent breaches an intervention order. The police should respond and take action, although they have discretion about whether or not to charge the respondent, and they may not have enough evidence to do so in a particular case.
Also refer to ‘What is the process to provide feedback or make a complaint about police response?’ in the ‘Victoria Police Response’ Q&A.
Further Resources
Intervention Orders and Legal Support on the NIFVS website has more information including resources on how to get and respond to intervention orders.
NIFVS Service Directory provides a list of legal services, courts, specialist family violence services and other relevant services.
Chapter Four – Magistrates’ Court
Chapter Four explains what happens at the Magistrates’ Court during an Intervention Order application and what services and facilities can add to a victim survivor’s safety.
Navigate this resource
Previous: Chapter Three – Intervention Orders & Legal Support
Infographics in this video
Intervention Order Process
Supports Available at Magistrates’ Court
Q&A – Magistrates’ Court
The following are the questions most commonly asked by regional stakeholders about the Magistrates’ Court.
To print the Q&A, click here.
How can workers liaise with the court to maximise an affected family member’s safety?
- Once an affected family member is notified of the hearing date for a family violence intervention order, contact can be made with the registrar at the Magistrates’ Court to discuss significant safety concerns and arrangements which need to be considered before or during the affected family member’s attendance at court.
- If it unsafe for the affected family member to attend court due to threats or other safety issues, alternative options can be considered such as a remote witness facility (via video). This is determined by each court and can be arranged through either the court or Victoria Police. If there are serious risks associated with the affected family member getting into the court building, security arrangements can be considered by the court.
- When the affected family member arrives at court for a hearing, other concerns regarding security and safety can be discussed with the registrar.
- A support person can provide support in the waiting room by sitting with the affected family member and requesting additional safety measures if required.
What happens when affected family members attend the Magistrates’ Court for a hearing?
- Before going to court, it is useful for workers to advise affected family members that it is best not to bring children. Encourage affected family members to bring food and drink as it is possible that they may be required in court all day and there may not be a cafe on the premises. Encourage them to bring evidence, paperwork, a book or magazine and a support person. A worker can attend court with an affected family member, as a support person.
- On arriving at court, affected family members will have to walk through airport-type security. They will then need to present to the family violence registry to let the registrar know that they have arrived. Affected family members can speak to the registrar about duty lawyers and other supports that can increase their safety.
- The Magistrates’ Court website offers further information about what can be expected when attending a family violence hearing.
How can workers ensure an interpreter is available for a court hearing?
- Once an affected family member is notified of their hearing date, contact should be made with the family violence registry at the relevant Magistrates’ Court as soon as possible to ensure an interpreter can be secured. It is important to follow up any telephone conversations with court staff via email to confirm the details of the original request. Most courts have an email address for the family violence registry.
- If an interpreter is unable to be booked for a court appearance, a telephone interpreter can be arranged by court staff.
- Interpreters often work half-day blocks, which means one interpreter may be with the affected family member in the morning for all the preparation work, but it may be a different interpreter for the actual hearing.
What do the different types of court hearings mean? (i.e. mentions, directions hearing, contested hearing)
- A mention hearing is the first date on which a matter is listed before the court. The matter may not get finalised that day, but if there is enough evidence of family violence, the magistrate may, at a minimum, grant an interim intervention order. If the respondent contests the intervention order application, the magistrate will not hear their arguments at the mention hearing.
- If the respondent contests the application, it will need to go back to court for a directions hearing. At this hearing, affected family members will need to advise the court of their needs and intentions including if they need an interpreter for the contested hearing; whether they will be calling any witnesses; and whether they will have a lawyer.
- The contested hearing is the final hearing, when the magistrate hears all the evidence from both sides, including witnesses, and affected family members will be asked to provide more details. A date might not be set for a contested hearing until the lawyers have gathered all the evidence.
What happens if the respondent doesn’t attend court and the matter keeps being adjourned?
- There are many reasons a respondent may not attend court, for example if the police have been unable to serve the intervention order.
- If an order has been applied for, and/or an interim order is in place, and the respondent has been service, but does not attend a subsequent court hearing, then the court can make a final order in their absence. It is ultimately a decision of the magistrate to finalise the matter based on submissions to the court. The final order will then need to be served on the respondent.
Also refer to ‘What happens if an intervention order isn’t able to be served on the respondent?’ in the ‘Family Violence Intervention Orders’ Q&A.
What can workers do to support an affected family member if the respondent’s violence escalates after court hearings or when an intervention order is served?
- If a respondent has been served an intervention order and the violence escalates, the respondent is then in breach of the intervention order and could be arrested. Even if the police do not have enough evidence at that stage to arrest the respondent, a worker can still encourage an affected family member to make a complaint, as repeated breaches demonstrate a series of incidents and behaviour. If safe to do so an affected family member can gather evidence of breaches by taking photos of any breaches and writing down details of the incident, including the time, date and place.
- In collaboration with the affected family member, a worker can consider if the conditions on the intervention order still support the safety of the affected family member.
- If the intervention order application was originally a police application, the police should be informed if the conditions on the intervention order need to be changed. Police can seek to apply to vary the intervention order to change the conditions.
- Workers can support an affected family member – where the affected family member is the original applicant – to apply to vary the intervention order conditions at the Magistrates’ Court.
- If the intervention order application was originally a police application, the police should be informed if the conditions on the intervention order need to be changed. Police can seek to apply to vary the intervention order to change the conditions.
Further Resources
Magistrates’ Court on the NIFVS website has more information about the Magistrates’ Court including what happens at the first mention, directions hearing and contested hearing.
NIFVS Service Directory provides a list of courts services in the northern metropolitan region that hear family violence matters and other relevant services.
