The Law Handbook 2024

296 Section 4: Relationships, families and young people Breaching a safety notice or an intervention order is a criminal offence. Affected family members under 18 years old applying for intervention orders If the affected family member is under 18 years old, the application for an intervention order can be made on their behalf. An application can be made by: • a parent, or • any person with the parent’s written consent, or • a police officer. However, the child may apply for the order themselves, if they are aged 14–17 years, and with leave of the court. In order to grant leave, the court must be satisfied that the child understands the nature and consequences of an intervention order. Such applications are usually heard in the Children’s Court instead of the Magistrates’ Court. If the affected family member wants to go to the police, it is best to seek legal advice first to discuss all the options, especially since there may be a risk of an application for a child protection order being taken out by the DFFH. Before making a final intervention order, a court must consider whether there are any children who are family members of the affected family member, or of the respondent, who have been subjected to family violence committed by the respondent. In such a case, the court may grant an intervention order on its own initiative to include the child (s 77 FVP Act). What happens after a family violence intervention order application has been filed? Usually, when the police or a family member experiencing family violence files an application for an intervention order, the Magistrates’ Court registrar issues a summons that is served personally on the respondent before the hearing date. Service is effected by police officers working close to where the respondent lives. However, if an applicant alleges that there has been an assault or assault has been threatened – and the registrar is satisfied that the family member’s personal safety or property would be seriously threatened if the respondent is not apprehended and brought into custody – a warrant can be issued for the apprehension of the respondent. The applicant must then seek an intervention order in the same way. It is state-wide police policy that proceedings brought by police should be initiated by an application and warrant where, after a risk assessment and investigation, there are concerns for the safety of a family member or where criminal offences are involved. This policy is part of the Victoria Police’s Code of Practice. Does the respondent have to attend court? Intervention orders can be made ex parte (i.e. without the respondent being present). In urgent cases, an interim intervention order can be made ex parte if the court is satisfied that it is necessary to ensure the safety of the affected family member or to preserve their property. A final intervention order can be made ex parte if the respondent cannot be located or chooses not to attend once served. Intervention order court process and legal aid In intervention order proceedings in court, evidence is mostly given in person by the applicant, the respondent and any relevant witnesses. The court may require the applicant and the respondent to provide ‘further and better particulars’ about the facts and allegations that will be put forward in support of, or in response to, an application for an intervention order. The court may also require the names of any witnesses. The FVP Act (ss 70–72) has unique provisions about cross-examining parties who are not represented by lawyers. If the applicant and/or the respondent does not have legal representation, then the Magistrates’ Court must order Victoria Legal Aid to offer funding for separate lawyers to appear for the applicant and/or the respondent just for the purposes of cross-examination. If the applicant and/or the respondent rejects the offer of legal representation, then certain cross-examination is not permitted. It is recommended that you seek legal advice and have legal representation for intervention order court proceedings, especially when the police are not involved.