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Legal Guide to Family Violence Intervention Orders

Legal Guide to Family Violence Intervention Orders

This guide shows how people can obtain protection orders from the court to protect them from technology-facilitated stalking and abuse. In Victoria these protection orders are called intervention orders.

1.1

 

1.1. Intervention Orders

The Family Violence Protection Act 2008 (Vic) (‘the Act’) is the piece of legislation (law) in Victoria that allows the courts to make orders protecting people from family violence.

A person who is experiencing family violence (‘affected family member’) may apply to the Magistrates Court of Victoria for a family violence intervention order (‘FVO’). An FVO can protect a person by ordering the person against whom the FVO is made (‘respondent’) not to commit further acts of family violence. 

Technology-facilitated stalking and abuse may be considered family violence. The Magistrates Court will grant an FVO if it is satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and it likely to continue to do so, or do so again.

1.2. Can technology-facilitated stalking or abuse be a form of family violence?

The short answer is yes – technology-facilitated stalking and abuse may be a form of domestic violence.

Technology-facilitated stalking and abuse can be a form of family violence if it is emotionally or psychologically abusive, threatening, coercive, or in any other way controls or dominates the family member and causes that family member to feel fear for the safety or well-being of that family member or another person.

Emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person.

The Act provides some examples of behaviour that is family violence, which may be perpetrated through technology-facilitated stalking and abuse:

  • threatening to assault or cause personal injury to a family member
  • threatening to sexually assault a family member or threatening to engage in another form of sexually coercive behaviour
  • threatening to intentionally damage a family member's property
  • threatening to unlawfully deprive a family member of the family member's liberty
  • 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

Please note that this list is not exhaustive.

Other examples of technology-facilitated stalking and abuse that can amount to family violence against a family member, such as a current or ex-partner, include:

  • making numerous and unwanted calls to a person’s mobile phone
  • sending threatening and/or abusive messages (texting messaging, Whatsapp, Snapchat, Facebook messaging, Twitter)
  • hacking into a person’s email or social media account to discover information about them (example: what the person has been doing, where they have gone, etc)
  • hacking into a person’s email or social media account to impersonate them and send abusive messages to family/friends of that person
  • using surveillance devices to spy on a person
  • sharing, or threatening to share, intimate pictures of a person to force them to do (or not do) something

A certain behaviour may be considered family violence even if the behaviour itself does not constitute a criminal offence.

Where can I find this information in the Act?

See sections 5 and 7 of the Act for more information about what behaviour constitutes family violence.

1.3. Who is a family member?

The Act defines a family member of a person as:

  • a current or former spouse or domestic partner
  • someone with whom the person has, or has had, an intimate personal relationship with
  • a relative
  • a child who normally or regularly resides, or did, with the relevant person
  • a child of a person who has, or has had, an intimate personal relationship with the relevant person

Please see the Act for a comprehensive definition of:

  • domestic partner (section 9)
  • relative (section 10)
Where can I find this information in the Act?

See sections 8, 9, and 10 of the Act for more information about what behaviour constitutes family violence

1.4. Who can apply for an FVO?

A person experiencing family violence is known as an affected family member.

The police may apply for an FVO on behalf of the affected family member.

If the affected family member is an adult, that person may apply for an FVO on their own or they may consent to another person applying for an FVO on their behalf.

Where can I find this information in the Act?

See section 45 of the Act.

1.5. How can an FVO protect a person from technology-facilitated stalking or abuse?

FVOs commonly contain certain conditions restraining a respondent from committing family violence, including technology-facilitated stalking and abuse.

A respondent must follow the conditions of an FVO. If the respondent breaks any of the FVO conditions (called contravening the FVO), it is an offence and the police can investigate and lay charges against the respondent (see section 1.7 below).

The court may include in an FVO any condition that appears to the court to be necessary or desirable in the circumstances. In theory this allows the court to make a wide range of orders restraining the respondent from committing various acts of family violence.

The Act provides some examples of conditions that may be included in an FVO. The conditions that relate to technology-facilitated stalking and abuse are:

  • prohibiting the respondent from committing family violence against the protected person
  • prohibiting the respondent from approaching, telephoning or otherwise contacting the protected person, unless in the company of a police officer or a specified person; and
    • Examples
      • Emailing the protected person.
      • Sending text messages to the protected person.
  • prohibiting the respondent from causing another person to engage in conduct prohibited by the order

The applicant for the FVO can also ask the court to include conditions that are specific to their situation and which will make them feel safe. For example:

Suggested wording to cover ‘revenge porn’ situationsThe respondent is prohibited from directly or indirectly publishing, or sending by email or through other electronic communication, photographs or videos of the protected person engaging in sexual activities or in which the protected person appears naked or partially naked.

Suggested wording to cover ‘tracking/surveillance device’ situationsThe respondent is prohibited from attempting to locate, follow or keep the protected person under surveillance.

Where can I find this information in the Act?

See section 81 of the Act.

1.6. How long does an FVO last?

An FVO remains in force for a period specified by the court.

If the court does not specify a period, the FVO will remain in force until it is revoked by the court.

Where can I find this information in the Act?

See section 89 of the Act.

1.7. What if a person is in urgent need of protection?

Interim orders

If a person is in urgent need of protection, they can ask the court to make an interim order for their protection when they apply for an FVO. An interim order takes effect immediately and may contain the same conditions as in a final order. An interim order usually lasts until the court can hear more evidence and decide whether to make a final order for an FVO or not.

Where can I find this information in the Act?

See sections 53–60 of the Act.

Family Violence Safety Notices

In circumstances where there has been an incident involving family violence and the police have attended the incident, if the responding police officer believes that the affected family member is in immediate need of protection, that police officer can apply for a family violence safety notice until an FVO can be decided by the court. A family violence safety notice may contain the same conditions as in an FVO. It remains in force until the first mention date of the application for the FVO, at which time the court may consider whether to make an interim order until a final order can be decided upon.

A family violence safety notice is taken to be an application for an FVO.

Where can I find this information in the Act?

See sections 24–39 of the Act.

1.8. What if a person breaks the conditions of an FVO by engaging in technology-facilitated stalking or abuse?

When a person does not obey the conditions of an FVO, this is called a breach or contravention of the FVO.

Contravention

It is an offence to contravene an FVO or a family violence safety notice. The penalty is a maximum of two years in jail or a maximum fine of 240 penalty units or both.

Contravention with intent to cause physical or mental harm

If a person contravenes an FVO with the intention to cause physical or mental harm to the protected person, it is a more serious offence with a penalty of a maximum of five years in jail or a maximum fine of 600 penalty units or both.

Mental harm includes psychological harm and suicidal thoughts.

Examples of contravening actions that can cause mental harm to a protected person:

  • showing intimate pictures of the protected person to family/friends/workplace
  • uploading intimate pictures of the protected person on the internet, including social media websites
  • sending death threats to the protected person through text message, email, social media

Persistent contravention

Lastly, it is an offence for a person to persistently contravene an FVO or a family violence safety notice. The penalty is a maximum of five years in jail or a maximum fine of 600 penalty units or both.

A person consistently breaches an FVO or a family violence safety notice if, on three or more occasions in the last 28 days, the person has engaged in conduct that would constitute a contravention of an FVO or a family violence safety notice.

In Victoria, if a protected person encourages, permits or authorises a respondent to engage in behaviour that contravenes the FVO or family violence safety notice, the protected person will not have committed an offence. For example, it is not an offence if:

  • he protected person invites or allows the respondent to have access to the residence or another place in contravention of the family violence intervention order or family violence safety notice.
  • the protected person allows the respondent to spend time with the protected person or a child of the respondent or protected person in contravention of the order or notice.
Where can I find this information in the Act?

See section 37–37A (family violence safety notice) and sections 123–125A of the Act.

1.9. Can police get involved if a family member engages in technology-facilitated stalking or abuse?

Certain conduct in relation to technology-facilitated stalking or abuse may constitute a criminal offence, which police can investigate and, if there is sufficient evidence, charge and prosecute. Please see the Legal Guide on Relevant Criminal Offences.

1.10. How can a person apply for an FVO?

A person can apply for an FVO, in person, at the Magistrates Court of Victoria. Ask to speak with the family violence registrar, who will ask some questions and provide an application form.

Application forms may also be obtained online at:
http://www.magistratescourt.vic.gov.au/forms/application-family-violence...

For more information, please see:
http://www.magistratescourt.vic.gov.au/jurisdictions/intervention-orders...

Alternatively, a person can also go to their local police station to report the family violence and ask for police to assist with applying for an FVO. The police may also apply for an interim order on the person’s behalf.

1.11. Further help and information

LEGAL ADVICE: At any stage, it is important for a person to obtain legal advice about their situation and the options available to them. Please see the legal services directory in the Support page for referrals to the nearest legal service.

Magistrates Court of Victoria
FVO factsheet

Magistrates Court of Victoria
Intervention Order FAQ factsheet

Legal Aid Vic
FVO factsheet

Victoria Police
Responding to Family Violence

1.12. Terminology

Language of 'Victim' vs 'Survivor'

Some women who are experiencing, or who have experienced, domestic violence use the term 'victim' of domestic violence to describe themselves. Others believe the term 'survivor' of domestic violence more accurately reflects their experience.

Whilst acknowledging that each woman's experience is unique and individual to her circumstances, for consistency, these guides will refer to women who are experiencing, or who have experienced, domestic violence as 'victims' of domestic violence.

Gender and Language

While domestic violence can happen in many circumstances (including in non-heterosexual relationships), in the vast majority of reported domestic violence cases men are the perpetrators and women the victims.

For this reason these guides use 'he' to refer to perpetrators and 'she' to refer to victims. This is not intended to exclude other situations.

Definitions

Criminal Offence (or offence)
A criminal offence is an offence against the State. It is commonly referred to as 'breaking the law'.

Summary offence
Less serious offences (such as minor theft), are known as summary offences. Summary offences usually have a maximum penalty of no more than 2 years imprisonment or are not punishable by imprisonment at all.

Indictable (serious) offence
More serious offences (such as murder, manslaughter, sexual assault) are known as indictable offences. Indictable offences are punishable by imprisonment exceeding 2 years.

Charge
When a person is charged with an offence, it means that the police have formally accused that person of committing an offence.

Conviction
When a person is convicted of an offence, it means that person has either pleaded guilty to committing the offence, or a court has found that person guilty of committing the offence.

Penalty unit
A penalty unit describes the amount payable for a fine. For example, some offences have a maximum penalty of a fine of 100 penalty units, others have a maximum penalty of a fine of 50 penalty units.

Penalty units are used instead of dollar amounts because the rate for penalty units is indexed for inflation and may therefore change from time to time.

The Department of Treasury and Finance set the dollar amount for one penalty unit; this value is updated on 1 July each year. As of 1 July 2015: one penalty unit = $151.67. Therefore, an offence with a maximum penalty of a fine of 50 penalty units will have a maximum fine of $7,583.50.

DISCLAIMER: The use of technology-facilitated violence is a developing area of the law. The legal information, examples and scenarios contained in the guide are intended to explain the law in general terms only and are not legal advice. They cannot be relied upon or applied by readers in their own cases. Each set of circumstances needs to be looked at individually. You should seek legal advice about your own particular circumstances.