Navigating the Silly Season: Family Violence and Intervention Orders
The ‘silly season’, as it is colloquially referred to, can often present quite a dangerous time with rates of family domestic violence hitting record highs.
According to data collected by the Crime Statistics Agency in 2019 with regard to numbers of family violence incidents, including verbal arguments, harassment, property damage, and IVO (intervention order) breaches, Victoria Police responded to:
49% more reports of family violence incidents on Christmas Day than the daily average in 2019;
and
27% more reports of family domestic violence incidents on Boxing Day than the daily average in 2019.
It so follows that applications for family violence and apprehended domestic violence orders are prevalent at holiday time; and there are stark differences in the law and its application between Australian States (Armstrong 2023).
Applying for a Family Violence Intervention Order
In Victoria, Family Violence Intervention Orders (FVIOs) are made under the Family Violence Protection Act 2008. A person who has a FVIO made against them must not breach the conditions of the order, and if they do so, will be guilty of a criminal offence.
In Victoria, the aggrieved person or someone else, like a police officer or a parent can apply for an order. Police can apply for personal safety intervention when they believe that a person needs protection. They can apply even if the protected person does not want an order to be made (VLA 2023).
In Victoria, to apply for an order, you need to fill out an ‘information for application for a personal safety intervention order’ form. You will then have an interview with the Registrar at the Magistrates’ Court.
Breaching a Family Violence Intervention Order
Breaches of FVIOs are increasingly prevalent around Christmas holiday time. However, a breach of an FVIO is an offence under Section 123 of the Family Violence Protection Act 2008. This offence attracts a maximum penalty of a fine of 240 penalty units or imprisonment for two years.
Breaches which happen persistently are treated more seriously. These breaches are therefore commonly classified as breaches with the intention of causing physical or mental harm to the protected person, or of causing them to fear for their personal safety. Persistent breaches are offences under s123A of the Family Violence Protection Act 2008. This offence attracts a maximum penalty of a fine of 600 penalty units or imprisonment for five years.
Defences to a Breach of a FVIO
It is worth noting that there are two main defences to a breach of a FVIO.
The defendant was not aware of the order
In Victoria, Family Violence Intervention Orders do not operate until the defendant has been served with a copy of the order or until they have received an explanation of the order in accordance with the Family Violence Protection Act 2008. If a person is charged with breaching an order, and they were not aware of it, they have a defence.
Duress
If a person carries out conduct that breaches an order, and they were placed under duress by another person, they are not guilty of an offence. For example, if a person was forced by another person to attend an address where the protected person was present, contrary to terms of the FVIO, they have a defence.
However, the defence of duress very rarely succeeds as a high threshold must be met proving a high level of coercion took place.
Christmas is a joyous time of year and quite often allows families to reconnect after a long year. However, with the combination of alcohol consumption and the rekindling of all forms of familial relations, contention can arise, and your family members can find themselves in tricky situations.
We are here to help in these circumstances. If you require legal advice surrounding your or a family member’s safety, or a FVIO against you, please contact Grice Legal.
