The Law Handbook 2024

Chapter 4.4: Family violence 297 Family violence intervention orders and Family Law Act orders An intervention order on its own does not necessarily stop or prevent contact with any children. If a court makes an intervention order, it has the power to revive, vary, discharge or suspend orders made about any relevant children under the FL Act. The court has the power to amend FL Act orders to make them consistent with the intervention order. Also, even if there are no FL Act orders in relation to a child, the court can include conditions in the intervention order about contact with that child. Note that if an application for an intervention order has been filed with the Magistrates’ Court under state law, the same applicant cannot apply for an injunction in the Federal Circuit and Family Court under federal law for the same violent or abusive circumstances, unless the earlier proceedings have lapsed or been discontinued. Intervention orders and parenting orders There is often misunderstanding about the interaction between family violence intervention orders and family law parenting orders, and so it is important to obtain legal advice. A respondent to an intervention order may still apply for parenting orders but the intervention order and any surrounding circumstances will be taken into account when the court determines the best interests of the child under section 60CC of the FL Act. If a parenting order already exists about, for example, spending time with the children, the Magistrates’ Court has the power to vary the existing parenting order so it does not conflict with an intervention order (e.g. where the children are to be collected or dropped off). This power exists under section 68R of the FL Act and can be exercised at the same time as making an intervention order under the FVP Act. If a parenting order for spending time with children is inconsistent with an intervention order, then the parenting order prevails and the intervention order is invalid to the extent of the inconsistency (s 68Q FL Act). If there is an inconsistency, it is a good idea to vary the parenting order to avoid problems. Obtaining legal advice is recommended. Duration, rehearing and appeals of family violence intervention orders An intervention order may remain in force indefini­ tely or for any specified period. Most commonly, intervention orders last for one to two years. If the respondent is a child, the final intervention order must not remain in force for more than 12 months unless there are exceptional circumstances (ss 97–99 FVP Act). In certain limited cases – such as where service has not been effected or in ‘exceptional circumstances’ – a respondent to a final order may seek a rehearing (s 122 FVP Act). However, if either party seeks to challenge any aspect of a final intervention order, both the applicant and the respondent can appeal; such appeals are usually heard in the County Court. If the appeal involves a question of law rather than the facts and merits of a particular case, then it will be heard in the Supreme Court. The procedure for appeals is set out in the FVP Act. Breaching family violence intervention orders A power of arrest without warrant automatically attaches to an intervention order for the duration of the order. This authorises state police officers to arrest and detain the respondent if they believe on reasonable grounds that the respondent has contravened the order. Unlike an injunction under the FL Act, a contravention or breach of an intervention order is a criminal offence (s 123 FVP Act) for which the police should prosecute. If the court is satisfied under the criminal standard of proof (i.e. ‘beyond a reasonable doubt’) that there has been a breach, it may impose a maximum fine of 240 penalty units ( pu ) (see ‘A note about penalty units’ at the start of this book) and/or imprisonment for up to two years. ‘Persistent’ contraventions (as defined in s 125A FVP Act) attract higher maximum penalties, namely up to 600 pu and/or imprisonment for up to five years. As in other summary crime matters, other prescribed penalties are available (see Chapter 1.3: Sentencing in the Magistrates’ Court).