FAQ – Variation of Intervention Orders

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Variation of Intervention Orders

An Intervention order is a Magistrate court judgment (temporary or permanent) used to protect an affected family member from being a victim of any harassment or violent behavior. Intervention orders, once issued could be varied by the applicant, affected family member, or the respondent himself if the conditions are difficult to live with and if there is a significant change in the circumstances pursuant to the issuance of the intervention order.

Variation could be done through filing an application to extend/vary or revoke an intervention order.

Below mentioned are a few common questions you will come across in dealing with varying an intervention order. These questions are only intended as an overview on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

Following persons can seek a variation of a FVIO:

  • The applicant on behalf of the protected person
  • Protected person
  • By the respondent
  • By a police officer if s/he is the applicant

An application for variation or revocation of a final intervention order may only be made by the defendant after the date fixed by the order. [1]

[1] Family violence and protection Act 2008 s.108

Yes. The application to vary the order should be submitted to the courts and the courts will make the variation order after taking the relevant factors in to consideration. The court will consider mainly:

(a) The applicant’s reasons for seeking the variation or revocation;

(b) The safety of the protected person;

(c) The protected person’s views about the variation or revocation;

(d) Whether or not the protected person is legally represented;

(e) If the protected person has a guardian, the guardian’s views.[1]

 

[1] Family violence and Protection Act 2008 s.100(2)

You may seek a variation by yourself. However, it is always best to have a lawyer to represent you at courts because a lawyer could provide you with:

  • Legal advice in varying an order
  • Draft the needed documents
  • File an application to extend/vary or revoke of an intervention order
  • Discuss your matter with the police, prosecutor and present your arguments to courts in a justifiable and convincing manner.

And if you are against the FVIO, and if you do not organize a lawyer to represent you at the contested hearing, you will not be allowed to cross- examine the affected family member yourself.[1]

[1] Family Violence and Protection Act 2008, s.71(4)

If you are the respondent, you can make the application when the order is served on you.

Once a final intervention order is issued, the validity period of that order would be expressly stated on the order. If you wish to vary the order, it could be done only after that date, on the other hand if a date is not specified, the order would be valid for the future time being, unless you appeal or apply to revoke the order.[1]

If it is an interim intervention order, the validity period would be mentioned on the order itself along with the next hearing date, and if you wish to vary the order, the application to vary, leave to apply for variation and all the evidence documents must be made ready on the hearing date.

It is best to start filing the application for variation of the order, as soon as you realize the order needs to be changed.

[1] Family Violence and Protection Act 2008, s.99

It could be changed by the Magistrate court, after you file an application to vary the order mentioning the change in circumstances and giving reasons as to why the order should lapsed/varied or extended. The court will consider the change in circumstances and all relevant factors.

The courts have the discretion to make adjustments to the order after taking into account the justifications placed by parties. The court’s paramount consideration would be the safety of the protected person. If you do not seem like a threat and a high risk to the protected person the court might allow your employment. It is hard to advice on a hypothetical situation but it is good to seek legal advice and apply for variation of the order.

Handing over the guns and weapons to the police is an optional condition on an intervention order which could be chosen by the applicant or the protected person.

When an intervention order is made your license to hold weapons are cancelled.[1]

You must make the application to become a non-prohibited person within 3 months of a final family violence intervention order being made against you by providing adequate and convincing reasons and evidence.

The Court may not vary a final intervention order by removing the firearms terms unless satisfied that the defendant has never been guilty of violent or intimidatory conduct and needs to have a firearm for purposes related to earning a livelihood.[2]

[1] Family Violence and Protection Act 2008, s.95(b)

[2] Intervention Orders (Prevention of Abuse) Act 2009 No 85 Division 4, s 26 (6)

The discretion lies with the courts in deciding which condition should be changed and which should be not. It is not possible to an exhaustive list of the circumstances under which a court may vary a FVIO, since it will depend on a case-by-case basis.

The protected person’s safety would still be a paramount consideration of the courts in making a variation order.

No, if it is stated in your intervention order that children are included in the FVIO and

That you cannot meet them without the permission, it would be a breach if you do so.[1]

[1] Family Violence and Protection Act 2008, s.91 s.93

Even if your spouse invites you to the matrimonial house or tries to contact you via telephone or any other mode, if you go along with it, it would still be considered as a breach of the intervention order. The order may be varied by the courts if contact is necessary for family or business arrangements but depends on the circumstances.

This is a very tricky situation if the FVIO has specifically prohibited contacting the spouse and not to remain within 5 meters. Such meetings or if any unexpected events happened during such meetings, it may lead to a criminal action by police. It is best to seek legal advice to consider options if parties want changes.

The police have issued a safety notice because the protected person is in the need of immediate help. It is a temporary order given by the police before the intervention order is given by the courts. If you do not comply with the conditions mentioned on the police safety notice you would be considered in breach of law and you could be arrested.

You can apply to vary the intervention order by giving justifiable reasons as to why the order should be varied. You can provide the courts with evidence of business, loss of income, loss of employees etc. and suggesting arranging accommodation for the protection persons. If the court is satisfied with your grounds, the police will consult the affected parties. Finally, the court will take these factors into consideration in variation application.

If the order restricts you from entering into the matrimonial home, you doing so would be a breach of the order. Elderly care is given due prominence by the Australian Government. Elders are not left to suffer or become victims of an intervention order. Neglecting elderly parents (not only individuals above 60 but also individuals with disabilities who are vulnerable enough) would be considered as an offence.[1]

Whatsoever the intervention order outcome is, the elderly parents should always be looked into either by an individual or an institution.

If you or your spouse is not in a position to look after your elderly parents, you can seek the support of the government under aged care laws. They have facilities such as:

  • Care at home
  • Care at residential nursing homes
  • Privately funded care and etc.[2]

 

[1] Liz Alderslade, Aged Care Guide, Australian First Elder Abuse Law Passed in ACT, 17th August 2021

[2] Australian Government Department of Health, https://www.health.gov.au/health-topics/aged-care/about-aged-care/what-is-aged-care#who-provides-aged-care

It depends on the facts of each case.

If your children have witnessed domestic violence at home on a daily basis and if it has affected them in a negative way and if it is likely for your children to be subjected to domestic violence, the court will include your children as protected persons under the intervention order and your contact with them will be cut off.

On the other hand, if there is a child arrangement agreed at by the Federal family courts, the spouse will not be able to keep the children away from you, unless your violent behavior is of high risk to the children.[1]

[1] Family Law Act 1975, s.68Q

Yes, when making intervention orders, any orders made in a different court, according to a different law should be notified to the magistrate courts, where the intervention orders are made.

It is important to remember, however, that in parenting matters the best interests of the child remain the paramount consideration for the Federal Circuit and Family Court (FCAFC). Therefore, FCAFC an order is enforceable despite the existence of a family violence order naming the child.[1]

[1] Family Violence and Protection Act 2008, s.176

According to family violence and protection Act 2008, any new member added to the family, such as a child, could be given additional protection through varying the interim intervention order.[1] If the court is satisfied that the child in consideration has been subjected to violence before and is highly likely to be subjected to violence again by the respondent, the courts will include the child under the intervention order which was issued for you.[2]

[1] Family Violence and Protection Act 2008, s.102(b)

[2] Family Violence and Protection Act 2008, s.104

Again, this is a tricky issue, you should try to avoid. You might be able to vary the intervention order, if you can convince the court that there will be no harm or threat to the protected person by you visiting your new partner or your spouse visiting new partner in such a situation. 

If there is a person that you are currently living together with or relate together in a home environment and etc. added to the family after the intervention order has been issued, that person would be considered as a family member and would be protected under the FVIO if there is a likely threat to that party by the respondent.[1]

[1] Family violence and protection order Act 2008, s.102

A Victorian court may direct a person who has used family violence to return not only personal property of the victim and his or her family members, but also personal property belonging to both parties, where that will enable the everyday life of the victim ‘to continue with as little disruption as practicable in the circumstances.[1]

Where federal family court proceedings are pending, a judicial officer applying family violence legislation may still consider it necessary to make a personal property direction to facilitate a prompt and safe recovery of personal items such as identification and bank cards.

[1] Australian Law Reform Commission, Family Violence- A national legal response (ALRC 114) https://www.alrc.gov.au/publication/family-violence-a-national-legal-response-alrc-report-114/16-family-law-interactions-jurisdiction-and-practice-of-state-and-territory-courts-3/personal-property-directions-in-protection-orders/

The maximum penalty for breaching a FVIO is two years imprisonment. Courts take breach of FVIO very seriously and the police have the right to arrest you the moment you breach a condition in the order.

Therefore, if there is any condition on the order which is impractical to be followed or any party related to the FVIO deem unreasonable, the courts should be informed and provided with adequate evidence and the order should be varied.