Despite the availability of huge information around, still, some community members are not clear; what the family violence is? The difficulty is people think of this question only after they become subject to the legal process.
As an Australian lawyer with the sub-continental background, I may say that the problem starts from the misconception of the term “family violence”. More particularly the difficulty is to understand the word “violence”. The definition of “violence” is not limited to a physical violent behaviour only. Physical violent behaviour or sexual abuse is only one kind of the family violence and other kinds include; economic abuse, psychological abuse, emotional abuse and threatening or coercive behaviour1.
Depriving the liberty of a family member2 and intentionally damaging a family member’s property or threatening to do so or to cause injury to an animal so as to control, dominate or coerce the family member is also a kind of family violence3.
A kind of behaviour may constitute family violence even if the behaviour would not constitute a criminal offence4.
Family violence is not acceptable in Australia in any form, in any community or culture. To constitute family violence it is not necessary that the victim or the Respondent should be in Victoria or in Australia when the family violence occurred5.
The remedy of the family violence is to report police or make an application to the court and a Family Violence Intervention Order can be made to put some restrictions on the person responsible for the family violence.
Three kinds of orders are usually issued under Family Violence Protection Act 2008; Family Violence Safety Notice (FVSN), Family Violence Interim Intervention Order (FVIIO) and Family Violence Intervention Order (FVIO). The purpose of all the orders is to protect the affected family member from violent behaviour.
The first one, FVSN, may be issued by the police and is valid until the matter is taken up by the court. The latter two, FVIIO and FVIO are interim and final orders of the court. The conditions of all the orders may be any restriction on the Respondent which is required to protect the affected family member or members6.
Initially, police may also exercise holding powers under Division 1 of the part 3 of the Act 2008. Police can issue a number of directions to protect the affected family member including detention of the person responsible for the family violence.
For the safety of an affected family member, any restriction may be imposed on another person. A person may be restrained from entering his/her own house or using his/her personal property. A person can be directed not contact the other person or persons in any manner including through email or text.
A common condition is prohibiting the respondent from being anywhere within a specified distance of the protected person or persons or a specified place, including the place where the protected person or persons live.
Breach of any of the conditions of a FVSN, FVIO or FVIIO is a serious criminal offence and a police officer may arrest without warrant7.
In Victoria, the contravention of any of the conditions of a Family Violence Safety Notice or Family Violence Interim or Final Intervention Order is punishable up to 2 years imprisonment or fine 240 penalty units or both8. In some cases like if the contravention is with the intention to cause harm the penalty may increase up to 5 years imprisonment and fine 600 penalty units9.
The current value, as on 1st July 2017, of a penalty unit is $158.57.
Another important aspect is to maintain the privacy of family violence proceeding. The Court may order that the proceeding is heard in closed court and only specified persons should present during the proceeding. Any contravention of the closed court order is punishable by 1000 penalty units or three months imprisonment10.
No person is allowed to publish any material that identify the locality of a court or particulars likely to identify a venue of a court, or particulars of a person such as name including pseudonym or alias, photograph, or any identification source like; profession, style of dress, recreational interests or the political, philosophical or religious beliefs or interests of the person11.
A publication leading to the identification of a party is an offence punishable by imprisonment for 2 years or fine up to 100 penalty units or both. A body corporate may be punished up to 500 penalty units12.
An intervention order lasts till the date specified in the order or until the order is revoked or varied by the Court. If no date is specified then the order is indefinite unless set aside on appeal13.
Sometimes family violence intervention proceedings are concurrent with the child protection or family law proceedings. There is a detailed legal framework to address such circumstances14.
If the affected person is not a family member than the proceedings are conducted under Personal Safety Intervention Orders Act 2010 (Vic) with some differences almost similar procedure and remedies are available.
Section 62 of the Act 2010 prohibits the court from making a final order if a family violence intervention order already exists.
Section 186 of the Act 2010 has revoked the Stalking Intervention Orders Act 2008 and the purpose of the Act 2010 includes protecting a victim of stalking. The meaning of stalking as provided by s 10 of the Act 2010 extends to follow or contact the victim through any mean including internet and social media. To trace the victim through use of internet or email or other electronic communications is also within the meaning of stalking.
The Act 2010 does not provide police protection before court orders as provided by the Part III the Family Violence Protection Act 2008.
A significant provision in the Act 2010 is a mediation process before court orders and the conduct of the parties during medication is taken into account by the courts.
Note: This article is an incomplete simple introductory information for community awareness and not a legal advice.
- Family Violence Protection Act 2008 (Vic) s 5.
- Ibid s 5(2)(d)
- Ibid s 5(2)(c ).
- Ibid, s 5(3).
- Ibid s 37(2A)&(2B),
- Ibid Ss 29 and 81
- Ibid s 124.
- Ibid Ss 37(2), 123(2).
- Ibid Ss 37A(2)(d), 123A(2).
- Ibid s 68.
- Ibid s 168.
- Ibid s 166.
- Ibid s 99.
- Ibid Ss 173, 176.
Originally published on 9 January 2018 at LinkedIn.
Basharat Ahmad Jatt
Barrister & Solicitor
This article is general information for the community and not legal advice. For legal advice please contact with particular facts of your case.
The author is an Australian Lawyer of Pakistani origin. Anyone looking for an Urdu, Punjabi, or Hindi speaking lawyer in Australia can confidently contact Jatt Lawyers.
Legal support for Australian Muslims for inheritance and family law issues in Australia is the common practice area of Jatt Lawyers.